Dunham v. Simmons

On reversing a judgment, the court of review, except where a venire de novo is awarded, renders such judgment as should have been given in the court below. Accordingly, in this case, we affirmed the judgment of the justice—that being the judgment which we thought the C. P. should have rendered. Had the C. P. given that judgment, the right of Dunham to $20 costs would have followed as a matter of course, and without any special order of the court. (Sess. Laws of 1840, p. 332, § 12.) In perfecting a judgment in this court for his costs in the C. P., Dunham has only followed out the consequences of-affirming the judgment of the justice. He has got nothing more than what the court below should have awarded to him. He was not entitled to any costs in this court; (Sess. Laws of 1836, p. 794, § 2;) and none were included, in the judgment.

Motion denied.