Erastus Dean et al., Plaintiffs in Error, vs. Thomas W. Williams, Defendant in Error

Erastus Dean et al., Plaintiffs in Error, vs. Thomas W. Williams, Defendant in Error. Costs do not, in general, follovy interlooutory orders, unlo.ss expressly-awarded; but abide the event of the suit. By the, standing rule of the late District Court, an amendment in pleading could only be made upon the terms of paying the intervening costs; and. while,, in force this rule, was as operative asa Statute provision, and the party seeking to exonerate himself from it, could only make it available by an express exception in his favor. A- more rule for judgment is not a judgment; .and a writ of error will not lio. upon it,. It is questionable whether error lies to reverse a judgment for costs alone. Error to the District Court of Walworth County.. This was an action of trespass quare clausum fregit, and, taking and driving.from thence.thp sheep of the plaintiff,. &c. The defendants.below.pleaded separately. The plain-* tiff below obtained leave to. discontinue and did. discom tinue as to two of the defendants. The cause was tried, at the June term of the Court fp$ Rock County, 1847; and, the jury were unablg to agree upon a. verdict, and. the cause was continued.,. At the same term the defendants,, by their attorneys, applied,, for and obtained leave,, to plead or give notice of special matter to be given in evidence on the trial of th.e canse; and, did plead and give, notice of suph special matter. At the October term, of the. District Court for Rock County, the plaintiff below applied for- and obtained an’ order for changing the venue from,. Rpck to Walworth County. At the May term of the Court for Walworth County, 1,848, the plaintiff pleaded issuqbly to the special plea of the defendants. At this, same term, and before a trial was had,, the plaintiff filed a motion for and obtained a rule that he recover of the defendants,, his proper costs and charges about his, suit expended between the times, of filing their original pleas and of the filing of their amended.pleas; and at the same time,, and as part of the same rule, it, was ordered that the plaintiff be nonsuited as to one -of the defendants, Stephen Scott, Junior, and that he (Scott) recover of the plaintiff his costs and charges of his defence in the suit. A jury was then empannelled.to try the cause, and. the proofs of the parties were given to the jury. After the trial, and before the presiding Judge gaye his charge to the jury, each of the parties, by their attorneys, requested, the Judge to instruct the jury in various particulars, which are unnecessary to be stated. The jury found. a, verdict for the defendants. Afterwards, at the same term of the Cqurt, the defendants below tendered, and, made exception to the decision and order of the Judge, granting to the ..plaintiff below, bis costs and charges about his suit, between the time of ’filing the first pleas and the seventh day of June, 184?, as before mentioned. Upon this exception the cause was brought into this Court upon a writ of error. It will be seen by the opinion of the Court that the cause was not argued, nor any briefs furnished by either party; and hence, the reporter has endeavored to give a succinct, but connected history of the case, as found upop the record. [MAJORITY — Stow, C. J.] By the Court Stow, C. J. This case has been submitted without argument or brief. Had we been aware, at the time the papers were handed up, that they were not accompanied with a brief, we should have declined deceiving them; as we cannot, as a general thing, consent to take upon ourselves to examine and decide cases in this Court, on a mere inspection of the record. By the record, it appears that at the September term of the District Court, 1847, and after one trial had been had, the defendants below (the plaintiffs here) applied for and obtained leave to amend their pleadings, which they did; and that at the following May term, a rule for judgment was obtained by the plaintiff below, for the costs incurred between the filing of the defective plea, at the October term, 1846, and the amendment, a year after-wards. The errors assigned are— 1st, The Court awarding costs, in May 1848, of the amendment allowed in September, 1847, when the rale for that amendment expressed no terms on which it was to be made: and — > 2d, The giving judgment for these costs. In regard to the first alleged error, it is to be observed, that though, in general, costs do not follow interlocutory orders, unless expressly awarded, but abide the event, by the standing rule of the late District Courts, the amendment could be made only on the terms of paying the intervening costs. This rule, while in force, was as operative and obligatory as a statutory provision; and. the party availing himself of it could exonerate himself of its bur-thens, only by an express exception in his favor. We are, therefore, of opinion that the District Court was right in awarding the costs it did. As to the second error assigned, it does not appear from the record that a judgment for the costs was, in point of fact, ever actually entered; and a mere rule for judgment is not a judgment, and error will not lie upon it; besides, it is very questionable whether error lies to reverse a judgment for costs alone. And for this reason (and without expressing any opinion on the subject whether a judgment was the proper-method of securing the payment of the costs awarded) the writ of error is dismissed.