June Term, 1860.

#### Van Ness and another, impleaded with Nichols and others, vs. Corkins.

Where a motion is made during the progress of a cause, it is irregular to order that the costs allowed on a denial of the motion be entered in the final judgment in the action. The payment of such costs is to be enforced by a special proceeding, to be taken according to the provisions of chapter 149 of the Revised Statutes of 1858.

A judgment may be entered against any one or more of several defendants, wherever a several suit might have been brought, or a several judgment upon the facts of the case would be proper; and that without regard to the character of the complaint, and whether it alleges a joint or several liability.

ERROR to the Circuit Court for *Rode*County.

The facts in this case are sufficiently stated in the opinion of the court.

*Knowlton, Prichard & Jaclcson,*for plaintiffs in error.

*Conger & Hawes,*for defendant in error.

July io.

*By the Court,*

Dixon, O. J.

This was an action commenced by the defendant in error (plaintiff below) in the circuit court for the county of Rock, againt *Van Hess*and *Hill*as the makers, and *Nichols*and others as the indorsers, of a promissory note, to recover, a sum of money alleged to have been due upon the same. The summons was regularly served upon *Van Hess*and *Hill*in the county of La Crosse, where they resided. *Nichols*and others, the indorsers, who resided in the county of Rock, were not served. No attempt was made to serve them. *Van Hess*and *Hill*answered, setting up that the note was given to *Nichols*and others, the payees and indorsers, on the purchase from them of a portable grain mill, which was warranted by the payees to be perfect in all its parts and machinery, and to do business in a particular *187manner, and alleging a breach of tbe warranty, and damages to tbe full amount of tbe note, and tbat tbe defendant in ror was not a *bona fide*bolder of it. Tbe answer was companied by a demand tbat tbe trial be bad in tbe proper county, to wit, tbe county of La Crosse, instead of tbe county of Bock, as designated in tbe complaint. Tbis demand, was followed by a motion to tbe court at tbe same term .of, but before tbe trial, tbat tbe venue be accordingly changed. Tbis motion was overruled with five dollars costs to be paid by tbe defendants to tbe plaintiff below ' and it was farther ordered that tbe same be inserted in tbe judgment in tbe case as costs of tbe action. At a subsequent day of tbe term tbe cause was tried before a jury, who returned a verdict for tbe plaintiff and against tbe defendants below, for tbe amount of tbe note and interest. Upon tbe receipt of tbe verdict, tbe attorneys for tbe plaintiff suggested tbat tbe defendants *Nichols*and others, indorsers, bad not been served with process, and asked leave of tbe court to enter tbe verdict and judgment against *Van Ness*and *Hill*alone, wbicb was accordingly granted. Tbat tbe verdict and judgment were so entered, appears born recitals contained, in tbe judgment itself.

A bill of exceptions, embodying tbe exception of tbe defendants *Van Ness*and *Hill*to tbe order of tbe court refusing to change tbe place of trial, was afterwards settled; but on tbe case reaching tbis court, it was stricken out for irregularity. And although we are, for tbat reason, precluded from considering tbe regularity of tbe order, yet we may be permitted to say tbat it was clearly irregular in directing tbat tbe costs allowed on tbe motion be inserted in tbe final judgment of tbe cause. Such costs form no part of those finally taxable on tbe recovery of judgment. Tbe payment of such costs is to be enforced by a special proceeding, to be taken according to! tbe provisions of chapter 149 of tbe Revised Statutes, wbicb are tbe same as those of chapter 115 of tbe Revised Statutes of 1849. Tbis direction to insert tbe costs in tbe judgment, might result in a reversal of tbe order itself in tbat respect, for bow could tbe court foresee tbat the plaintiff was to recover judgment? If tbe defendants succeeded on tbe trial, and tbe costs were inserted, then *188they would receive the costs of the motion instead of paying _ them. The case does not show whether these costs were included in the final judgment or not, and therefore, it is unnecessary for us to consider how their insertion would affect the judgment.

After the bill of exceptions was rejected, it was still contended by the counsel for the plaintiffs in error, that the judgment must be reversed, because it was irregular in being entered against the defendants *Van Ness*and *Hill*alone. But in this we think they are mistaken. Under the 184th section of the Code, (sec. 26, chap. 132, E. S.,) a judgment may be entered against any one or more of several defendants, wherever a several suit might have been brought, or a several judgment upon the facts of the case would be proper; and that without regard to the character of the complaint, and whether it alleges a joint or several liability. The true test is, whether a separate action might have been maintained; and if it could, a several or separate judgment is proper. The complaint in this case alleged a separate cause of action against the defendants *Van Ness*and *Hill,*as the makers of the note. The plaintiff might, at his option, have brought a separate action against them. At the common law, he would have been compelled to do so. By section 24 of the Code, (sec. 21, chap. 122, E. S.,) he may include any or all of the parties to a bill or note in the same action, to suit his pleasure or convenience. Section 174 of our Code was identical with section 274 of the Code of New York; and as to the construction which it has received by the courts of that state, see 1 Kern., 294; 2 id., 336; 15 Barb., 524 ; 16 id., 33 ; 19 id., 321; 21 id., 26; 9 How., 204; 8 id., 151; 3 E. D. Smith, 591; and 2 Abb., 358.

The judgment of the circuit court is therefore affirmed, with costs.