&: T. R. CO.
verdict in this /case the plaintiffs had no claim for duties on charges and commissions, 'because such excess had been included in a verdict in favor of Christ, Jay, and Hess, rendered February 25, 1864. It is understood that under the Code of Procedure of the state suits must be brought by the party in interest, and that causes of· action which accrued to one firm may be recovered upon by another firm which has succeeded to its rights. But the order of succession of these firms is inconsistent with the idea that Christ, Jay, and Hess recovered back excess of duties on charges and commissions paid by the plaintiffs, on the ground ths.t they had succeeded to the rights of the plaintiffs, and wete the' parties interested in such recovery; for the plaintiffs succeeded them, and not they the plaintiffs, and the succession of right of recovery, if any ,would be from them to the plaintiffs, and not from the plaintiffs to them. It is further understood that,under that Code of Procedure, the accruing of the ,right of recovery to the predecessors of, and the acquisition of it by, the plaintiffs as parties in interest, must be setout in the pleadings, and that there are no such allegations in these pleadings. This tends to show that this suit was brought to recover upon a right which accrued directly to the plaintiffs, and not upon rights whioh came to them through others. There are circumstances tending to show that the attorney for the plaintiffs has understood that there was a case pending in which a recovery on the importations of 'IOOWJ8eline de laines might be had, and that at times the district attorneys in office had the same understanding. But the transactions are so ancient, and the cases against collectors in charge of the district attorneys have· been so numerous, and the changes in that office·so frequent, that it is not made clear, on the whole, that there was any mistake among coun· ,sel which resulted in the entry of this verdict. It may be that there was, but that is not enough for setting aside a verdict which has stood so long. The fact of the mistake should be made clear j and, on repeated. examinations of the proofs, it is not clear. Therefore sufficient grounds for granting the motion do not appear. Motion denied.
JOHNSON v. MISSISSIPPI & T. R. Co. and others.
(Oircuit Oourt, 'W: D. Tennessee. July 21, 1887.)
COSTs-RECOVERY OF LESS THAN FrVE HUNDRED DOLLARS-REV. ST.
U. S. §968. Where· a. plaintiff jointly sued three railroad companies for in.1ury to his property by laying their tracks in the street of a city, and recovered in the agmore than $500, but under the code practice,atrequest of defendants, the verdicts and .ludgments were 'separated, and the recovery against each was less than $5()O, the plaintiff is, nevertheless, entitled to costs, and the prohibitiQns of Rev. St. § 968, do not apply.
This suit was one originally brought at law in this court against the three railroad companies named in the caption, and others, for damages claimed by the plaintiff in the sum of $10,000, resulting to him from the laying of defendants' railroad tracks on a street of Memphis 'in front
of his abutting property. Upon the trial verdict was rendered for the plaintiff in the sum of $700, and apportioned among the p.efendants,that against the Kansas City, Springfield & J\'1emphis Railroad Company being $300; .and judgment was rendered accordingly, and for costs. The other defendants thereupon paid the several judgments against them, together with the respective pro rata amount of the costs of the suit; but the Kansas City, Springfield & Memphis Railroad Company, having paid the money recovery against it,. resists the payment of costs, and moves to 'vacate'the judgment as to costs, relying upon a want of jurisdiction in the court to award costs against it because of the prohibition contained insection968 of the Revised Statutes, quoted in the immediately preceding case; the claim being that the verdict and judgment should be treated as several, so far as this section of the statute is concerned. W. Randolph, for plaintiff. Newman Erb, for Kansas City, S. & M. R. Co.
HAMMOND, J. In this case this defendant resists a recovery for costs on the ground that each of the three judgments against the three ants respectively is less than $500.; Rev. St. § 968.' But while this is· true, the aggregate of theplaintitrs,recovery is more than $500. The suit was'ajoint one against the three railroad companies, treating the injury complained of as one wrong to the plaintiff; but, under the charge of the court, separate verdicts were rendered against each, and the judgment moulded accordingly, as under the Tennessee Code, by especial direc-· tion, may always be .done, no matter what the form of action or the groundsof it. Thomp. & S. Code Tenn. §§ 2973-2975; M. & V. Code, §§ 3687-3689. Perhaps it is true that the defendant companies had no necessary connection with each other, although laying parallel tracks in the same. street in front of· plaintiff's property, and that the .cause of action was several, and not joint; though o;s to this I do not deem it proper to express any opinion, since it may be that a joint action would be eminently proper, and sometimes necessary, to apportion the liability of each, for it may be doubtful precisely whether the cause of action sounds in contract or damages, under the peculiar rights of the party suing a railroad company for" taking his property," or injury to it by laying its tracks upon a street in which he has only a kind of special property. The complications of that subject need not be settled here, because whatever should have been the form of action, no objection was taken before trial to that which was brought jointly; and the powers of the court under the Code, already cited in that behalf, were resorted to by the defendants to save themselves from any judgment except their respective shares of the whole recovery. But,under such circumstances, it is too late to now make the objection that the suit"should have been severally brought, and seek to escape the liability for costs by the defendants' act in separating the verdict and judgment for their own benefit. The exclusion of the statute as to costs does not apply in such a case. Motion denied.
GIBSONV. MEMPHIS & C.·R. CO.
& C. R. Co.
w: D. Tenne886e.
RECOVER-r' OF LESS THAN FIVE HUNDRED DOLLARS -
Tb.e rule of Revised Statutes, 968, that the pre7ailing party shall not be allowed costs when the recovery 1S less than $500, is imperative, and the court has n,O discretion to allow costs in any case whatever,. where the judgment is less than .the sum limited. But it will not adjudge costs against the. prevailing party if there be a reasonable expectation of recovering more than that
The:plaintiffs bronght this action originally in this court, for damages in the alleged sum of $4,950, for the unlawful expulsion from defendant's (jars of the plaintiff Mrs. Gibson and her two children, as passengers. The case was tried by jury, resulting in a verdict for the pHtintiffs for $100, whereupon plaintiffs moved the court for jUdgment 'ttpan'the verdict, and for costs. The motion for costs was resisted by the defendant on the ground that the court had no jurisdiction to award costs upon a verdict of less than $500; in a case like this; citing section 968 of the llilvised Statutes, which provides that in a circuit court,- a plaintiff, in an action at law originally brought there, or a petitioner ill equity, other than the United States, recovers less than the sum or value of tive hundred dollars, exclusive of costs, in a case which ciuInofbe brought there unless the amount in dispute, exclusive of costs, exceedS said sum or value, or a libelant, upon his own appeal, recovers less than the sum or value of three hundred dolllU's, exclusive of costs, he shall not be allowed, but, at the discretion of the court, ll''ly be adjudged to pay, costs." The defendant also entered its motion, under this section of the statute, upon the facfs of the case for a judgment against the plaintiffs for costs. The two motions were heard and argued together. Young & Martin, for plaintiffs. Poston & Poston, for defendant.
,J. The statute does not leave the court any discretion in disallowing the plaintiffs' costs in this case. The authorities cited are not applicable,.and need not be considered in this connection. At common law each party paid bis Own expenses of litigation, and costs were not known. The court had no discretion about it, to allow them or disallow them. The statute of Gloucester first enacted that the prevailing llarty sh()uld recover his expenses as costs from his adversary, and, as a -matter of law, judgment for the costs followed a jUdgment in his favor. But this act of-congress changes that rule, and says that, where therecovery is less than $500,00 costs shall be aUowed,and, in effect, restores the cotnm6n law in' such' caseS. Some 'statutes enacted for the same purpose as this-to prevent frauds upon the jurisdiction of the court -do give the court a discretion to allow or disallow the prevailing party