State ex rel. Webster v. Knight

delivered the opinion of the court.

This is a petition asking that a writ of mandamus may be issued against the respondent, who is one of the judges of the St. Louis Circuit Court, to compel him to receive a verdict rendered by a jury. It seems that there was a ease pending in said court wherein Smith and others were plaintiffs, and Webster, the relator, was defendant, in which the jury returned the following verdict: “We, the jury, find a verdict for defendants, they to pay the costs of this suit.” This-verdict the respondent refused to receive, and discharged the jury. The refusal, it appears, -was based on the fact that the jury assessed costs against the defendant when *85at tbe same iime they found in his favor. In this they erred and went beyond their power, as our statute declares that in all civil actions and proceedings of any kind the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.

The jury found for the defendant; the verdict was good and complete. The matter of costs was not in issue, and was not submitted to them. That part of their verdict, therefore, was merely void, and should have been disregarded as surplusage. The writ will issue, but the plaintiffs in the suit will have leave to file their motion for a new trial in the same manner as if the verdict had been received and entered at the proper time.

Peremptory writ ordered.