Cassady v. Trustees of Schools, 94 Ill. 589 (1880)

March 1880 · Illinois Supreme Court

94 Ill. 589

Francis Cassady v. Trustees of Schools.

Ottawa, March Term, 1880.

Costs—as against school trustees. Upon the reversal of a judgment recovered by school trustees in a suit upon the official bond of a township treasurer, no costs should be awarded against the trustees. Under the statute, where school trustees prosecute or defend in their official capacity, they are not liable for costs.

This was a writ of error to the Appellate Court for the Second District.

An action of debt was instituted in the circuit court by the trustees of schools against Cassady, as a security upon the official bond of a township treasurer. Upon a trial in the circuit court judgment was recovered by the plaintiffs, and on appeal by defendant to the Appellate Court that judgment was affirmed. Cassady, the defendant, thereupon sued out this writ of error. Upon the hearing in this court the judgment of the Appellate Court was reversed and the cause remanded, and judgment for costs was entered against the school trustees. A motion is now made in behalf of the trustees to vacate the judgment for costs against them, and to direct a remanding order to issue without payment of costs.

Messrs. Hill & Dibell, for the motion.

Mr. George S. House, contra.

Scott, J.:

The judgment in this case was entered in vacation. It is in the power of the court any time within six months to change the judgment. We are of opinion the motion ought to be allowed. Under the statute there can be no costs adjudged against the trustees of schools where they prosecute in their official capacity. There is nothing in this case to show but what they have prosecuted in good faith. There could, therefore, be no reason for adjudging costs against them personally, if such a thing was even authorized by the statute-. But they prosecuted here iu their official capacity, and under the statute they are not liable for costs. The judgment as there inadvertently entered against them will be set aside, and a remanding order may go, with our opinion, without costs.

Motion allowed.