Etten v. Kosters

• Decision Date: 21 April 1896
• Docket Number: 6489
• Citation: 66 N.W. 1106,48 Neb. 152
• Parties: EMMA L. VAN ETTEN ET AL. v. HENRY A. KOSTERS
• Court: Nebraska Supreme Court

66 N.W. 1106

48 Neb. 152

EMMA L. VAN ETTEN ET AL. v. HENRY A. KOSTERS

No. 6489

Supreme Court of Nebraska

April 21, 1896

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

REVERSED.

David Van Etten, for plaintiffs in error.

F. A Brogan, contra.

OPINION

NORVAL, J.

The court below rendered a judgment on the 24th day of September 1892 against the defendants below, upon the pleadings, without any proofs or evidence, for the sum of $ 359.40. The only question for determination is whether the plaintiff was entitled upon the pleadings to judgment for the amount rendered. The action is upon a supersedeas bond executed by Emma L. Van Etten, as principal, and the other defendants, as sureties, to stay the execution of a judgment obtained in the district court of Douglas county by Henry A. Kosters against said Van Etten during the pendency of proceedings in error instituted by her in this court for the purpose of reviewing said judgment. The petition alleges the recovery of a judgment by Kosters against Van Etten, on February 11, 1889, in the sum of $ 286.30 and costs; the execution and delivery of the supersedeas bond attached to and made a part of the pleading; the prosecution of a petition in error by said Van Etten to this court; the affirmance of the judgment, and subsequently the modification thereof by requiring the plaintiff, as a condition of affirmance, that he file a remittitur for the sum of $ 28 as of the date of the original judgment, which he accordingly did; the issuing and filing of the mandate of this court directing the district court to proceed with the enforcement of the original judgment to the extent of $ 258.30, with interest thereon from February 11, 1889, and the costs in the district court, amounting to $ 35.73; the issuing of an execution upon said judgment, and the return thereof by the sheriff unsatisfied, and that said judgment is wholly unpaid.

It will be observed that the recovery in the case at bar is for the precise amount claimed in the petition, including the item of $ 35.73 for costs, and we take it that the judgment was thus rendered on the theory that the answer of the defendants presented no defense to plaintiff's cause of action. In this we think the court below erred. The defendants in their answer deny the amount of costs which the petition alleges was recovered against Mrs. Van Etten by the judgment superseded, and they also expressly aver that such costs did not exceed the sum of $ 20.93. There was no reply filed, and this averment as to costs in the answer must be taken as true. Upon this defense alone the judgment was excessive in the sum of $ 14.80. The answer pleaded as a set-off the amount of costs Mrs. Van Etten recovered against the plaintiff in this court on the proceedings to review the original judgment. The answer alleges that such costs were taxed and specified in the mandate issued to the district court at the sum of $ 24, when in fact Mrs. Van Etten was entitled to recover a much larger sum as taxable costs to-wit, $ 59.05. The items of cost making this sum are set out in the answer, and it is averred that plaintiff is liable to Mrs. Van Etten therefor, excepting the sum of $ 6, which belongs to the clerk of this court as his costs in the case. The unpaid...