Cleaveland v. Henderson

4 Tex. 91

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

jjIPSCOMB, J.

The defendant in error was security for costs in a suit brought by Johnson against Jackson. Johnson succeeded in the suit, and had judgment against Jacksou. on which an execution was sued out and returned no property found. Execution was then sued out against Henderson for the costs. It was levied, but before a sale Henderson moved the court to quash the execution and levy. It was admitted in the statement of facts that Henderson had paid all the costs that had accrued at the instance and on the part of Johnson, but liad not paid the defendant’s costs. The court quashed the levy, and decided that Henderson was not liable for the costs of the defendant; from ’hich Cleaveland, who is the cleric of the court, brought the case into this court by writ of error, and he assigns the ruling of the court as error.

The proceedings were under the first section of au act concerning proceedings in the District Court passed on the 10th March, ISIS. It is in tiic following words: “That the plaintiff in any civil suit, at any time before final judgment, upon motion of the defendant or any officer of the court interested in the costs accruing in such suit, may be ruled to give security for the costs; and if such rule be entered, and he fail to comply therewith, on or before the first day of the next term of the court, the suit shall be dismissed.”

The construction wc give to this act is that it did not intend that the plaintiff should be bound to pay more costs than his own if he succeeded in the suit. It is doubtful if a strict construction would justify collecting more-from him, under his security for costs, than should be adjudged against him. And if so, tills rule requiring security for costs would not bind the security for any costs where the plaintiff was successful and no judgment for costs against him. But as it is believed that this statute was not intended to do more than charge the plaintiff for such costs as may have been incurred in his behalf, and that in the event of not being able to make the costs adjudged to him from the defendant, ho would be liable for so much as a liberal construction of the act may embrace of such costs. He was liable for such costs without the act; and the object of the law was that it should be secured.

In this ease we believe that the security of the plaintiff having discharged all the costs that could be justly charged to him, the levy and execution were illegal, and that it was right and proper to quash the same.

Judgment affirmed.