Davis v. Farmer

BichaRDSON, Judge, delivered the opinion of the court. It was decided in Hamilton v. Moody, 21 Mo. 79, that when the plaintiff gives security for costs and the defendant prevails in the action, judgment for costs may be rendered at the same time against the surety. This is the most convenient practice and ought to be universally adopted; but if it should be omitted, there is no reason why the surety should escape liability on his undertaking. The instrument declared on in this suit strikes the legal mind as anomalous in omitting to name an object, but it seems to be recognized by the statute as in proper form, (B. C. 1855, p. 441, § 2,) and is according to the form often used. (See B. C. 1855, p. 1626, Appendix, No. 46.) The [56] apparent intention of tlie legislature would be defeated by applying technical rules to such instruments, and hence to give them effect it is necessary to construe the defendant in the suit in which the obligation is filed as the obligee, and to allow him, in the event that the plaintiff is condemned to pay the costs, to maintain an action in his own name for all the costs which the plaintiff is bound to secure. The judgment will be reversed and the cause remanded; Judge Scott concurring. Judge Napton absent.