Shelton v. Clark's Ad'rx, 7 Ark. 194 (1846)

July 1846 · Arkansas Supreme Court

7 Ark. 194

Shelton vs. Clark’s Ad’rx.

In Caldwell -kc Sell & Graham, & Ark. R. 419, it was held that when no specific sta1 is adjudged to a party for his costs, he- should not, in declaring upon such a judg./ ment, describe it as a judgment for costs in numero, butshould describe it truly, and then by appropriate averments show the- amount of costs to which he is entitled- upon and by virtue of the judgment.

But it is not necessary that the ayerment should state the exact amount of costa recov.-ered by such judgment s it will be sufficient to state a sum large enough to cover the' amount of costs.

Appeal from, the Circuit Court of Hempstead County.

This was an action of debt brought by Jesso Shelton againsi Huldah Clark as administratrix of Benj. Clark, determined in thecircuit court of Hempstead county, at the May term 1845, before-the Hon. George Conway, judge.

After the usual commencement in debt, the declaration sets out the cause of action thus: “For that the said Jesse Shelton on the 12th day of October 1840, within, &e. at the October term of our cii’cuit court in and for the said county, by the consideration and judgment of our said circuit court, recovered against the saidBenj. Clark the sum of $200, with interest thereon at the rate of six per cent, from the second day of April 1830 till paid, and costs of suit, and the said plaintiff avers that the costs in that suit amount to the sum of fifty dollars, which said recovery remains in full force,” &c. &c.

Defendant pleaded nul tiel record, to which issue was taken, the cause submitted to the court, and finding for defendant. Plaintiff appealed, and it was agreed upon record by the parties that the case should be tried in this court upon a duly certified copy of the record introduced as evidence in the court below without exception. It shows a judgment against Clark corresponding with the one described in the declaration, as to court, date, amount, &c. together with the costs of suit, which are taxed at $12.60.

Hump stead, for the appellant.

The only question to be decided is, whether the court was warranted in finding the issue on l‘nul tiel record,” for the defendant. The judgment on which the suit was predicated constitutes a part of the record by express agreement of the parties, according to the rule laid down in Lenox vs. Pike, 2 Ark. 20. Vide Cole vs. Dris/cell, 1 Blackf. 16. Gist vs. Higgins, 1 Bibb 304.

The judgment declared on strictly corresponds with the description in the declaration. There is nothing to indicate the precise reason for the opinion of the court: but it is believed to have resulted from the mistaken idea that there was a variance in relation to the costs. No specific sum was adjudged as costs, and the plaintiff, in accordance with the principle established in Caldwell vs. Bell & Graham, 3 Ark. 425, described the judgment in that respect truly by alleging that the plaintiff recovered the costs of suit, and then averred that his costs in that suit amounted to fifty dollars. In the case cited the court say “where no specific sum is adjudged to the party for his costs, he should not, in declaring upon such judgment, describe it. as’ a judgment for costs in numero; but should describe it truly, and then by appropriate averment, show the amount of costs to which he is entitled.”

In our practice costs are not taxed until after final judgment; nor is an execution or fee bill any part of the judgment upon which actions of this kind are founded. Caldwell vs. Bell, 3 Ark. 425. It is therefore clear that where a judgment is for costs generally, a party may by averment claim a sufficient amount to cover his outlay or liability in that respect, and then as in other cases be permitted to recover the amount claimed or a less sum according to the proof. Any other rule would produce infinite mischief: and I understand the principle contended for by me to be clearly enunciated in the case alluded to. The record produced corresponded in every essential part with the record described in the pleading and therefore the issue ought to have been found for the plaintiff.

Oldiiam, J.

The'finding of the circuit court upon the issue of nul tiel record is most clearly erroneous. The record produced in evidence precisely corresponds with that described in the declarar tion, and fully sustained the issue upon the part of the plaintiff.

If the decision of the court below was governed by the opinion that there Was a variance between the declaration and record in regard to the amount recovered for costs, such an opinion was erroneous. The rule is laid down in Caldwell vs. Bell & Graham, 3 Ark. R. 419, that “when no specific sum is adjudged to the party for his costs he should not, in declaring upon such a judgment, describe it as a judgment for costs in numero, but should describe it truly, and then by appropriate averments show the amount of costs to which he is entitled upon and by virtue of the judgment.” But we do not apprehend that the averment should state the exact amount of costs recovered by such judgment, but that it will be sufficient if it state any sum sufficient to cover the amount of costs, leaving the amount to be recovered therefor to be governed by the evidence. Such is the course adopted by the pleader in this .case, Judgment reversed,