Dale v. Rosevelt

By the Court, Woodworth, J. The rule of the court of errors does require that the costs in that court shall be taxed by the chancellor, or one of the judges, or by the clerk ; but this rule was inadvertently adopted, as by a provision of the fee bill, (2 R. L. 4,) the taxation of such costs may be in the usual manner of taxing costs in the court to which the record is remitted. There was therefore no irregularity in the taxation. The practice as to the filing of the remittitur has not been uniform. In some instances it has been filed in vacation; in others, leave has been asked of the court. But in a case like this, where nothing was to be done by the supreme court to carry into effect the judgment above, but to permit the issuing of an execution, why should the party wait until term 1 The execution issues by the order of the court of errors, not of this court. The practice, however, is settled in the case of Lyon v. Burtis, (2 Cowen, 510,) that the remittitur may be filed in vacation. As to the objection that the continuance roll, as it is called, was not signed by a judge, the defendant has misapprehended its object. It is not a judgment awarding execution, or adding new parties, in which cases the signature of a judge or commissioner would be necessary ; it is a bare history of the proceedings after judgment, and was altogether superfluous, as the remittitur contained all that was necessary to be stated. [27] The motion is therefore denied, but without costs, the defendant being an administrator, and the court being satisfied that the motion was made in good faith, that it is not frivolous, nor intended to vex or put the opposite party to expense. Motion denied.