Morrison v. Ide

Parker, Justice. The question to be decided is, whether this action was discontinued by the service of the notice of discontinuance, and the payment of five dollars and disbursements. A discontinuance without the payment of costs, is a nullity. (Huntington v. Forkson, 7 Hill, 195; White v. Smith, 4 Hill, 166.) And so it was treated in the present case, by the defendants’ attorneys, who claimed that the money tendered was insufficient to pay them costs. The defendants’ attorneys were clearly wrong in charging in their costs $7 for their costs subsequent to the notice of trial, and before trial. That item is not chargeable until an action has been noticed for trial. It was intended as a compensation for. preparing for trial, after notice of trial; and in this case the notice of trial was not served till after the tender and service of notice of discontinuance. Were the defendants’ attorneys entitled to charge $10 for costs of the motion changing the place of trial ? Under the late practice, it was not 'usual to charge either party with costs of a motion to change venue, at the time of deciding the motion. Nothing was said in the rule about costs, and in such case the costs were to abide; the event of the suit. The successful party in making-out his final bill of costs, inserted the general items allowed in the fee bill for services on special motions. But we have now no such allowance in the fee bill. The code gives no compensation for services on special motions, but the court, in its discretion, is authorized to allow costs on a motion, not exceeding ten dollars. If the judge makes no such allowance in the order, the clerk has certainly no power to review his discretion and make an allowance. It is right that the unsuccessful party should pay the costs of such a motion, but such payment cannot be enforced under the code, unless it is provided for, and the amount fixed in the order by which the motion is decided. Perhaps it would be sufficient to say in the order that costs are fixed at ten dollars to abide the event of the suit. It has been heretofore thought equitable, that the costs of such motions should fall on the party who fails in the suit, rather than on the party who fails in the motion. In this case the defendant was allowed, by section 307 of the code, “ for all proceedings before notice of trial, five dollars.” This, with his [306] disbursements, was the extent of his legal claim for costs when the notice of discontinuance was served. The money tendered was, therefore, sufficient, and the cause was legally discontinued. The clerk had no power to tax the costs. He is only authorized, by section 311, to insert in the entry of judgment the sum of charges for costs and disbursements. Ho taxation is deemed necessary, and'no adjustment in other cases is provided for. It is supposed the amount due can be readily ascertained by the parties, by reference to the provisions of the code. The motion must be granted, but the practice having been somewhat unsettled, no costs of motion will be allowed.