Kennedy v. Dean's Administrator

46 Pa. 246, 1864 Pa. LEXIS 11

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1864
• Status: Published

Opinion

The opinion of the court was delivered, January 4th 1864, by

Lowkie, C. J.

This judgment was entered on a warrant of attorney, and the defendants got it opened in order to claim a defalcation arising out of the contract on which the judgment was founded, and on the trial they succeeded in reducing the plaintiff’s claim from $1500 to $700. Having thus succeeded in their purpose, they think they are entitled to the costs of the trial; but they are not, for in common law practice the costs follow the judgment, and that is for the plaintiff. If they had tendered and deposited in court the $700, and the previous costs before they tried their case, it would have been otherwise. True, this course could not be easily taken on a claim to defalk unliquidated damages.

But the defendants might have sued for their claim, and then, on recovering it, they would have been entitled to costs. Or, without opening the judgment, on showing good cause, they might have had a collateral feigned issue to try how much credit or deduction they were entitled to on the judgment, and then the costs of that case would have followed its judgment. But having set up their claim by way of defalcation in the original suit, their success does not entitle them to costs any more than if the issue had been on a partial set-off, or payment.

Judgment affirmed.