McArthur v. Starrett

May, J. The error for which a judgment may be reversed, by writ of error, may exist, either in the foundation, proceedings, judgment or execution of the suit. Howe’s Prac., book 2, chap. 13, sec. 8, and the cases there cited. It may be an error in law or in fact. If it be the former, it [346] must always appear upon the record; if the latter, it may be shown by proof of some fact, not apparent upon the record, but affecting its validity, or the regularity of the proceeding itself; such as the death or insanity of one of the parties at the commencement of the suit; or the appearance of an infant in a personal action by an attorney, and not by guardian. In such cases and the like there is error in fact existing, without any fault, or legal capacity to prevent it, on the part of the party seeking to correct it. The law, therefore, deems a writ of error an appropriate remedy for the correction of such errors. Bouvier Law Dic., vol. 2, p. 501; Knapp v. Crosby, 1 Mass., 479; White v. Palmer, 4 Mass., 147; Colby’s Prac., p. 338. But in cases where the facts alleged are such as do not affect the validity or regularity of the proceeding itself, and in which a party having legal capacity to act, has had a full and fair opportunity upon legal notice to avail himself of such facts, in a court having competent jurisdiction, but has voluntarily or by his own laches waived his rights in regard to any defence which might have been sustained by them, this process cannot afterward be maintained. So too where such party appears and omits to plead any matter which he might have pleaded in abatement of the suit; or where he neglects to offer any evidence which he had, material to the issue, or which, when offered, was excluded by the court; or where any other rifling was made which did not become a matter of record, as formerly under the statute of Westminster 2d, chap. 31; or where a party had a remedy by appeal and did not exercise it, having a capacity and opportunity to do so, the facts which might have been available in any of these modes, cannot afterward be assigned as error for the reversal or correction of the judgment which has been so obtained. Howard v. Hill., 31 Maine R., 420; Jewell v. Brown, 33 Maine R., 250; Gay v. Richardson, 18 Pick., 417; Riley v. Waugh, 8 Cush., 220; Campbell v. Patterson, 7 Verm., 86; Whitwell v. Atkinson, 6 Mass., 272. In the case now before us the original defendant seeks the reversal or correction of a judgment for costs which were [347] taxed for the original plaintiff by the clerk. They were taxed and allowed without any notice to the defendant in the action, no notice having been given by him to the clerk, by an entry upon the docket or otherwise, of any desire on his part to be heard in the taxation. The error assigned and relied on, is the allowance to the plaintiff of $51,48, at each of three terms of this court, for his travel from Richmond, Virginia, to Augusta, Maine, he having made affidavit that he did actually so travel at each of said terms, for the purpose of attending to said suit. A memorandum exhibiting the items of cost, as taxed and filed with the papers in the case, shows such allowance. Such memorandum is no part of the record. Storer v. White, 7 Mass., 448; Kirby v. Wood, 16 Maine R., 81. In the case of Valentine v. Norton, 30 Maine R., 194, it is said by Shepley, C. J., in the opinion of the court, that “ nothing is presented by the writ of error to a court of errors but a transcript of the record. Papers and documents filed in the case, but not incorporated into the record, constitute no part of it.” It was therefore held in that case, that “ no correction of the errors alleged to have been committed in the taxation of costs could be made by an assignment of them as errors in law.” When an illegal taxation appears upon the face of the record the error is one of law, and it is decided in the case last cited, that for such an error a writ of error will lie. So also in Massachusetts, Waite v. Garland, 7 Mass., 453; Mansur v. Wilkins, 1 Met., 488. Where no error is apparent upon inspection of the record, if one exist, it is an error in fact; a fact, however, of such a nature and occurring under such circumstances, that according to the authorities before cited, a writ of error will not lie for its correction. For such irregularity in the taxation of costs by the clerk, the remedy is by appeal. Jacobs v. Potter and al., 8 Cush., 236; Day v. Berkshire Woolen Co., 1 Gray, 420. Such is the law of Massachusetts, and our rule of court providing for an appeal from the taxation of costs by the clerk being substantially like the R. S. of that state, chap. 121, sec, 28, no reason is [348] perceived why the law of this state, in like cases, is not the same. The plaintiff in error had the right to be heard in the taxation of the costs in the original action, and if dissatisfied therewith to appeal to a judge of this court, sitting’ at Nisi Prius, or in vacation, and if he voluntarily waived such right, and error has occurred, he cannot justly complain that the law now denies him the remedy which is sought. If the question as to the legality of the clerk’s taxation, which was intended to be raised in the present case, had been presented at Nisi Prius, and the ruling of the presiding judge upon it had not been satisfactory, upon exceptions duly taken, the opinion of the full court might have been obtained. If there be any error in such taxation, of which we give no opinion, whether the plaintiff in error has any remedy, we are not now called upon to decide.” Judgment affirmed.