Warder v. Evans

• Decision Date: 31 May 1830
• Parties: WARDER v. EVANS.
• Court: Missouri Supreme Court

2 Mo. 205

WARDER

v.EVANS.

Supreme Court of Missouri.

May Term, 1830.

APPEAL FROM LAFAYETTE CIRCUIT COURT.

TOMPKINS, J.

This was an action of debt founded on a judgment rendered in Kentucky against the defendant. Pleas, payment, release, and nul tiel record. To the pleas of payment and release demurrers were filed, and issue taken on the plea of nul tiel record. Judgment was given in the Circuit Court for the plaintiff, as well on the issues of law as of fact; and to reverse this judgment the defendant prosecutes his appeal.

On the record it appears that the declaration states a judgment for $420 52 1-10, and also for the further sum of $17 61 for his costs. The judgment is for $420 52 1-10, and also for his costs by him in this suit in this behalf expended. It appears further from the bill of exceptions in this cause, that the costs of the suit in Kentucky, as taxed by the clerk, and certified in the record here declared on, amount to $17 61, the amount claimed for costs in the declaration.

The appellant, by his counsel, contends that this is such a variance as is fatal, and relies on the case of Ferguson v. Frizel and others, 1 Mo. R. 441. In that case the declaration is for $175 debt, $11 damages, and for $19 43 1/2 for his costs. The judgment given in evidence is for $175 debt, $11 damages, and for his costs and charges, &c. This variance between the allegation in the declaration and the record offered in evidence in that case, was held fatal. And it may be observed, that had it appeared on the record then before the court, that the costs had been taxed and certified by the clerk, as in the present case now before the court, the decision would probably have been different. We do not see, from the opinion, that the costs had been taxed and certified by the clerk of the court that rendered the judgment declared on in that case. The taxing of costs is a ministerial duty of the clerk, and when it is performed, the amount of costs for which the judgment is rendered is as well ascertained as if it had been set down in so many words by the court. The costs are taxed and certified along with the proceedings of the court; and we think that the appellee declared well for costs in numero, and that it was not necessary that he should aver the costs amounted to $17 61, as contended by the appellant.^(a)

The appellant abandons his plea of payment, but contends that the release was well pleaded. In Dunklin and others v. McKee, it was decided that an action could not be maintained on a lost bond: see 1 Mo. R. 123. If a plaintiff cannot sue on a lost bond, we see no reason why a defendant should...