Hicks v. Brennan , 10 Abb. Pr. 420 ( 1860 )

Bonney, J.

—This cause being at issue and on the calendar, was on plaintiffs’ motion put off for December term, on payment of costs, which were not paid. It was then noticed by both parties for January term. On December 31s't, plaintiffs’ attorney entered an order or judgment, entitled in the action, in the following words: “ On motion of I. T. Williams, attorney for plaintiffs, ordered that the complaint in this action be, and the same is hereby dismissed, with costs to the defendants, to be adjustedand afterwards served a copy properly certified by the clerk, on defendants’ attorney.

Thereupon the defendants, without further order or direction of the court, had their costs adjusted by the clerk, entered judgment and issued execution.

On affidavits showing such entry of judgment, and alleging various errors in the adjustment of the costs, an order was made setting aside the judgment, and for readjusting the costs as directed in the order.^* The costs have been so readjusted, and payment thereof was, on March 6th, demanded. On affidavit that said costs remain unpaid, and noticed, defendants now move for leave to enter judgment that the complaint be dismissed, and for their costs as last adjusted, with the costs of the motion. The plaintiffs insist that defendants must again notice the cause for trial, and if plaintiffs do not appear when the cause is regularly called on the calendar, take judgment by default.

I can see no necessity or reason for the delay and expense of such a proceeding, except to vex the defendants. The plaintiffs have expressed in writing, and made part of the record, their consent and desire that the complaint be dismissed with costs to the defendants; and the defendants ask the benefit of such consent, and that judgment be entered accordingly. In my opinion they are entitled to such judgment, and the motion is granted, with ten dollars costs.

* The decision is reported, Ante, 304.