People ex rel. Holbrook v. Judges of the Jefferson Common Pleas

2 Wend. 301

Opinion

By the Court, Marcv, J.

The Messrs. Symonds, who are sought to be charged with costs in this case, have done no act which subjects them to a liability for costs. Their application to the common pleas to have a return made to the alternative mandamus, and their opposition to the issuing of a peremptory mandamus, ought not to have that effect. In those particulars, they did no more than what is ordinarily done by parties in cases of mandamus, and yet they are not subjected to costs. Even this court, on the coming in of the return, were not prepared to say that a peremptory mandamus ought to issue, but directed the relators to demur, so that the law of the case might be looked into ; nor were She Messrs. Symonds parties to the demurrer. In the title, the judges of the Jefferson common pleas, and not the plaintiffs in the original action, were named as parties. Not having done any act, and not being even named as parties, they can in no sense be considered as such; nor can the judges be considered as parties, they having done no act but what their oficial duties required in obeying the requisitions of this court. The motion of the relators, therefore, is denied.