Stewart v. See

21 Mo. 513

Opinions

Leonard, Judge,

delivered the opinion of the court.

The judgment given against the plaintiff here, for costs, is erroneous and must be reversed. The general rule is, that, where the plaintiff recovers, he is entitled to costs. (R. C. 1845, tit. Costs, art. 1, sec. 6.) But the 12th section of the same act made it an exception to the rule that, “ in actions of debt, covenant and assumpsit, and other actions founded on contract, when the recovery is below the jurisdiction of the court, unless that result be produced by a set-off, costs shall be adjudged against him.'’

This suit, under our new practice act, was for a compensation in damages, and also for specific relief by a judicial annulment of the promissory note the party had given pursuant to the contract, and the relief he obtained was $12 33 by way of damages and the specific relief prayed for. This, therefore, is not a case where, by mere force of the 12th section, the defendant is entitled to a judgment against the plaintiff for costs. Here are two causes of action set up, one of which is different from those specified in this section, and the plaintiff has judgment for relief upon both causes of action, and we are here to inquire into the propriety of the relief granted.

We are told, however, that, under the 8th section of the 12th article of the new code of procedure, when there are several causes of action united, the court may award separate trials, and when there are separate trials, the court is bound “to award costs against the unsuccessful party, unless, for good cause, it is otherwise ordered;" and it is insisted that here was a separate trial in relation to the cause of action for the damages, and that the plaintiff was the unsuccessful party within the meaning of this section, because he recovered less than was sufficient to entitle him to costs under the 12th section of the cost act of 1845.

We are hardly at liberty so to deal with the express words of this law. This is probably a case not provided for in the change made in one mode of proceeding, but we cannot remedy the omission. The party, having sued upon two causes of action and recovered in both, although for one cause his recovery is less than would have entitled him to costs, has not thereby subjected himself to the costs of this case, much less to all the costs.

The judgment must therefore be reversed, and Judge Ry-land concurring, it is reversed, and the cause remanded, that a judgment may be given there in conformity with this opinion.