¶1The Opinion of the Court was delivered by
¶2Griffin recovered a judgment against Gunn and Fox. An execution was issued thereon, and levied on certain property claimed by Morgan. The right of property was tried before the, sheriff, and found against the claimant. Morgan appealed to the Circuit Court, where a motion was made to dismiss the appeal. An affidavit of the sheriff was read in support of the motion, stating that after the appeal was taken, he sold the property in question with the assent of Morgan, and that the proceeds remained in his hands, subject to the order and control of Morgan. The Circuit Court dismissed the appeal, and rendered a judgment against Morgan for the costs.
¶3The dismissal of the appeal and the rendition of the judgment for costs, are here assigned for error.
¶4The affidavit of the sheriff being uncontradicted, must be considered as true. It is evident from it, that the matter in dispute was settled by the parties, after the trial before the sheriff, and before the dismissal of the appeal. By such settlement, the plaintiff in execution abandoned his claim on the property, and the same was sold, and the proceeds received by the sheriff for the benefit of Morgan. A further trial of of the right of property was out of the question. There was no subject matter left to be tried. The Court, therefore, decided correctly in dismissing the appeal.
¶5The only other question was the proper disposition of the costs. In deciding this, we think the Court erred. In contemplation of law, the parties respectively advance such costs as they make during the progress of the cause. When they compromise the case, without any understanding as to the payment of the costs already incurred, the suit ought simply to be discontinued on the record, without the rendition of any judgment for costs. The effect of such an entry is, that each party bears his own costs. Watson v. DePeyster, 1 Caines, 66; Johnson v. Brannan, 1 Johns. 268.
¶6The judgment of the Circuit Court is reversed, with the costs pf this writ of error. A judgment will be rendered here, that each party pay his own costs in the Court below.
¶7Judgment reversed,.