Whipple v. Williams

Allen, Justice. The plaintiff objects: First. That the motion should have been noticed for the first day of the term. (Buie 56.) The excuse of the defendant’s attorney for not having done so appears upon the moving papers, and I think is sufficient. The motion was noticed in proper time for a special term in Broome county, and was not made on account of the final adjournment of the court unexpectedly, and at an earlier day than was anticipated, and the motion was then noticed for as early a day in this term as was practicable. Secondly. It is insisted that the court has no authority to review the acts of the clerk, and correct his errors in the settlement of the costs; that the duty of adjusting and settling the amount of the costs is devolved upon the clerk by § 311 of the Code of Procedure, (original code § 266,) and that his acts are final. This objection is not tenable. The code does not assume to provide for a regular and orderly taxation of the costs as was practiced under the former system. It was supposed that that part of the code regulating the costs to be allowed to the prevailing party would execute itself, and that the insertion of the amount as fixed by the law would be but little more than a clerical act. It is true, nevertheless, that the clerk necessarily adjudicates and passes upon the several items of the costs and disbursements; but it by no means follows that such an adjudication is final, because no review is expressly given by the act. It is the duty, as it is doubtless one of the necessary and incidental. powers of the court, to see to the proper and legal discharge by its inferior officers of their duties. The clerk, as one of the officers of the court, is in all things, and in none more so than in the formal entry of the judgment which is pronounced by the court, under the direction of the court. The court has, as one of its incidental powers, the same right to control his actions and compel him properly to perform his duties, that it has to regulate its practice, govern and control the attorneys, and finally to adjudicate upon and settle the rights of the suitors. This power cannot be taken from the court, except by express legislation. The defendant is not' at this time entitled to have an order upon the plaintiff for the payment of his costs of the December and January circuits. If the plaintiff, upon a reasonable application, would have been liable to pay them, and I have but little doubt of his liability to pay the costs of the December circuit, (18 Wend. Rep. 519,) the motion should have been made the first opportunity after the adjournment of the [30] circuit. (5 W. R. 82 ; Innes v. Van Epps, 1 How. Pr. Rep. 105; 2 W. R. 288; 7 W. R. 519.) The defendant'must be held to have waived his right to the costs of the circuits at which the cause was not tried. But the plaintiff was clearly not entitled to the fees for the attendance of his witnesses at those circuits. He had called the defendant there upon his notice, and had it in his power to try the cause, and if for any reason he did not choose to do so, the defendant cannot be charged with the costs of the circuit. (Titus v. Bullen, 6 W. R. 562; Leaven v. Lush, 3 W. R. 305; Slocum v. Lansing, 3 Denio, 259; Willard v. Harbeck, id. 260; Purdy v. Morgan, 2 How. Pr. Rep. 149.) The fee of serving the complaint was not taxable unless it was served by the sheriff, and then it was taxable as sheriff’s fees. The next question is as to the sufficiency of the notice of the time and place at which the amount of costs would be settled by the clerk. If the notice were technically sufficient, still I think the practice adopted in this case"was overreaching and oppressive, and should not be upheld. (Smith v. Brown, 2 W. R. 245.) It was doubtless adopted to prevent any objections to the illegal items included in the costs. But I think the notice insufficient. By the practice of the late Court of Chancery, a service of a summons requiring a two days’ service on Saturday, for Monday was not a good service. (1 Hoff. Ch’y. Pr. 518.) By the rules of that court, the day of the hearing (Monday) would have been excluded in the computation, and by that method, Sunday being the last day of the running of the notice, should be excluded; (Vanderberg v. Van Rensselaer, 6 Paige, 147.) Buie 63 of this court adopts a different rule, and excludes the day of service, and this rule is not inconsistent with the Code of Procedure, (§ 407,) and still governs the practice of the court (§ 469) in cases to which it is applicable. I do not think it is applicable to a case like the present. The time for the service of the costs and notice is fixed by statute, and the law makers designed that the party should have notice of two full days, and that he should have two business days in which to prepare his objections to the costs, and be enabled to attend and make them. If Sunday is to be included and counted as one of those days, he has in effect but one day’s notice, or perhaps, as in this case, if notice is served on Saturday night, after an attorney has left his office, for an early hour on Monday morning, he ha's no notice at all. There was in this case no available notice of the time and place of the settlement of the amount of the costs. In. the computation of the time fixed by statute for the performance of an act or within which an act is to be or may be done: if the time so fixed is less than a week, Sunday should not ordina [31] rily be estimated as a part of the time if it should happen, to intervene. The intention will be held to be that the full number of business days mentioned by the statute, should be allowed to the party, unless a different intention is apparent from the act itself. A different rule holds when one or more Sundays must necessarily come within the time fixed by the statute. (2 Hill, 375 ; Thayer v. Felt, 4 Pick. 354.) The proceedings of the plaintiff were, therefore, irregular, as well as oppressive, and must be set aside. Costs of the motion would be granted, had not the defendant asked more in his notice than he is entitled to, and for this reason costs are not granted. (Bates v. Loomis, 5 W. R. 78.) This part of the motion is granted, unless plaintiff’s attorney stipulates to deduct $24.32 from the amount of the costs included in the judgment, and if such deduction is made, then the motion is denied without costs to either party.