Opinion
Fall Sessions, 1839.
CERTIORARI to Justice Benjamin Burton.
C. G. Ridgely, for exceptant.
Cullen, for respondent.
Record. Dodd vs. Bennum's administratrix, c. Demand $1417. Summons issued returnable Friday, 8th February next: returned summoned. The parties appeared and the defendant claimed a reference, which was granted, and the case was adjourned until 8th March, when the parties appeared again and went into trial by referees, who reported no cause of action: and judgment of non-suit. "This judgment opened March 22, 1839, and new trial granted." The parties appeared again and defendant claimed a reference, which was granted: trial and report "that Asahel Dodd shall obtain judgment for $700, and each one pay their own costs. Judgment accordingly."
Exceptions. — 1. That the new trial was granted without it appearing from the record that either party demanded it. 2. That the referees awarded in favor of plaintiff a sum exceeding $533, and yet ordered him to pay costs. 3. Because the referees did not award any specific sum in favor of the plaintiff. 4. Because it does not appear when the judgment was rendered. 5. Because judgment was rendered against an administrator generally, when it should have been of assets. Cullen, for the plaintiff below, contended that the magistrate was not bound to state on whose application the new trial was granted; and if this were error it was cured by the subsequent appearance, and submission to the new trial: That the award as to costs was void; but did not vitiate as to the sum awarded; and that as to the question of assets, it would be presumed that the justice tried that question and found it against the defendant.
The judgment must be reversed on the second exception. The award excluded costs, which is illegal when the sum found due exceeds $533; and the judgment necessarily followed the award.