United Verde Extension Mining Co. v. Biles

McALISTER, C. J. This is an appeal by the defendant from that portion of a judgment ordering it to pay to the clerk of the superior court the jury fee. A verdict for $1 in favor of plaintiff was returned, — 251 — and upon it the court rendered judgment to the following effect: “It is therefore ordered, adjudged, and decreed that judgment be entered upon the verdict herein, and that the said plaintiffs do have and recover judgment against the said defendant for the sum of $1, and plaintiffs’ costs of suit in the amount of $453.15; and it is further ordered, adjudged, and decreed by virtue of the provisions of chapter 26, Session Laws of Arizona 1915, that the defendant herein shall pay to the clerk of the above-entitled court the sum of $1,620, which said sum is hereby fixed as the jury fee to be paid by the defendant in this cause, and the same shall be paid by the clerk of the above-entitled court to the county treasurer as by law provided. ’ ’ Several errors are assigned, but they each raise the one question involved, namely, the correctness of that portion of the judgment directing the defendant to pay the jury fee. This order was made in the exercise of what the court conceived to be its duty under paragraph 638 of the Civil Code, as amended by chapter 26 of the Session Laws of 1915, which reads as follows: “ (638) Costs in the superior court shall include the fees of officers, witnesses, cost of taking deposition, compensation of referees, cost of certified copies of papers or records and such other disbursements as may have been made or incurred pursuant to any order of court or agreement of parties. There shall also be included in the judgment, and taxed as costs, a jury fee, which jury fee shall be fixed by the court at the time of the rendition of the judgment, and the same shall be paid to the clerk of the court and such clerk shall pay the same to the county treasurer who shall dispose of the same as other similar moneys are disposed of; provided, that the court may at any time for good cause shown, relieve any person from the payment of such jury fee when in the opinion of the court such relief may appear proper.” — 252 — Previous to its amendment this paragraph consisted of what is now its first sentence, and as a consequence no jury fee was then collectible in this state from either party, nor had been since the adoption of the Revised Code of 1913. But permitting juries in civil causes at the expense of the county did not meet the approval of the succeeding legislature; hence it amended this paragraph by adding that portion beginning, “There shall also be included in the judgment, ” for the evident purpose of compelling the parties to the action, except in those cases where for good cause shown it might, in the opinion of the court, appear proper to relieve them from doing so, to reimburse the county for this expense. Such had been the law previous to 1913, and as far back at least as 1901, when the Revised Code of that year was adopted, though the procedure outlined in the amendment of 1915 for the collection of this fee and that contained in paragraph 1389, Revised Statutes of 1901, to accomplish the same end are alike in neither wording nor meaning. The latter reads: “The party in whose favor the verdict of the jury shall be, shall pay to the clerk of the court the amount of the per diem of the jurors before the verdict shall be recorded. In case of a disagreement of the jury, the party who demanded the jury in the first instance shall pay to the clerk of the court the per diem of the jurors at the time of the discharge of the jury or within such time as the court may order. All sums so paid shall be taxed and allowed as part of the costs of the party paying the same, if judgment be finally rendered in his favor.” It appears from this, and is no doubt recalled by those attorneys residing in the state who practiced here in territorial days, that it was then required that the winning party in a civil action advance the jury fee before the verdict was recorded. In response to an inquiry by the court it was merely an — 253 — nounced by the foreman of the jury whom the verdict was for, and, unless the amount of the per diem of the jurors trying the case were paid, it was not received or recorded. Appellant makes no reference in its brief to this procedure, but contends that under paragraph 638 the winning party must advance the jury fee and afterwards incorporate it in his cost bill or it cannot be included in or become a part of the judgment. Such a construction, however, if true, has the effect of restoring the old procedure, except as to the matter of time, in that it still requires the successful party to pay the jnry fee, but permits him to do so after the verdict is recorded, instead of before; the essential thing being that it is paid in time to be included in the cost bill. It is not claimed, however, that paragraph 638 requires in express language, as did 1389, supra, that the “party in whose favor the verdict” is, shall pay it, but the contention is that the provisions that it “shall be included in the judgment” and “taxed as costs” imply that he shall do so, since only the successful party recovers costs, and no items other than those actually expended can be incorporated in the cost bill. What is meant by “taxing costs”? According to 15 C. J. 175, it is the “ascertainment by itemized statement of the amount to be recovered, and the insertion of the amount in the judgment.” The procedure by which this is accomplished in Arizona is found in paragraphs 640, 641 and 642 of the Civil Code of 1913, which provide, in substance, that the winning party shall, within a certain time after judgment, file a verified statement of the costs claimed by him, and serve a copy thereof upon the attorney for the opposing party, and that the clerk shall, after five days from the date of the service upon the opposing attorney, if no objections are filed, or in case they are filed as soon as they — 254 — are passed upon by the court, include the same in the judgment. These provisions are based on the assumption that the successful party has paid his costs when he files his cost bill, and were enacted for the express purpose of providing a way by which he, having been required by other provisions of the Code, namely, paragraphs 627 and 635, to pay them at the time the services were rendered, may have them included in the judgment to be returned to him by the losing party. And necessarily they do not direct him to do something he is presumed by their very enactment to have already done. Since, then, costs are paid originally because of the definite requirements of paragraphs 627 and 635, and not because the provisions prescribing the method by which they are taxed, it is not apparent how the expression, the jury fee shall be “taxed as costs,” can be construed as directing the successful party to pay it. It is no better authority for the advancement by the judgment creditor of the jury fee than the procedure for taxing the filing fee, witness fees or any other item of costs is for their payment originally. If it had been the intention of the legislature, when amending paragraph 638, to require the winner to advance this fee, it could have, and, in view of the old procedure, doubtless would have, manifested this intention in express provisions similar to those of paragraph 1389 of the Code of 1901, under which it was required, and the fact that it did not do so indicates that such was not its intention. If the successful party were liable for this fee at any stage of the proceedings, it would be after judgment, because its amount is not known previous to that time, the language of the statute being, “it shall be fixed by the court at the time of the rendition of judgment.” In this respect it would be unlike other costs, which are payable when the service is — 255 — performed; but, the judgment being rendered and the jury fee fixed at the same time, the payment of the latter cannot be made a condition precedent to the rendition of the former. And, while the court has control of its judgment, and can make the orders necessary to enforce it, there is no language in paragraph 638 or elsewhere justifying the conclusion that its enforcement may be made to depend upon the payment of this fee by the judgment creditor, unless it be the expressions “it shall also be included in the judgment” and “taxed as costs.” These terms, however, cannot be construed as authorizing such procedure because the payment of costs originally is no part of the process of taxing them, and to say the jury fee “shall be taxed as costs” can only mean that it shall be taxed in the same manner other costs are taxed, which does not imply necessarily that it shall be included in the same cost bill, and taxed in the name and for the benefit of the same person, that is, the successful party, but merely that the amount claimed shall be made known and included in the judgment in the same way as his. It is contended, however, that no one except the party who recovers judgment can recover costs, since a judgment is the “final determination of the rights of the parties in an action or proceeding” (1 Black on Judgments, 2d ed., § 1), and “ ‘taxable costs’ are allowances made to the successful party to reimburse him for the disbursements made in prosecuting or defending a suit” (Hygienic Chemical Co. v. Provident Chemical Works, 176 Fed. 525, 100 C. C. A. 121). If this be true, the county, not being a party, cannot recover the per diem of jurors except through the agency of the successful party, notwithstanding it incurs this expense for the benefit of the litigants in every civil jury case. — 256 — But paragraph 638 was evidently amended for the purpose of restoring the policy of reimbursing the county for the jury fee, and, as we see it, the court, the clerk, and the judgment, instead of the winning party, are made the instrumentalities through which this is accomplished. To carry the statute into effect the first requirement is that the court fix the amount of this fee, whereupon it becomes the duty of the clerk to enter the order so made and include it in the judgment; and there is no language from which it can be understood, not even the term “it shall be taxed as costs” so implies, that he do this upon condition that the successful party first advance the fee to him. The fixing of it by the court and the entry of the order upon his records by the clerk perform for the county the same function the cost bill does for the successful party, which is to disclose the amount claimed, first, to the losing party, in order that he may object to any item he thinks improper; second, to the court, that it may pass upon and settle it when, objected to; and, third, to the clerk, that he may include it in the judgment. No better information concerning the amount of the fee, nor of the fact that it is claimed, could be gained from the one than from the other. The fact that the loser is permitted to object and be heard on his objection to any item of the cost bill is satisfied by the provision that the jury fee shall be fixed at the time of the rendition of judgment when all parties are in court and have an opportunity to object and state their reasons. And the suggestion that five days’ time is allowed for filing objections is answered by the last portion of the paragraph, which permits the court at any time, for good cause shown, to relieve any person from the payment of the fee when, in the opinion of the court, it may appear proper to do so. Hence, when the fee has been fixed and the order entered, nothing — 257 — remains to be done to complete tbe taxing of this item of cost, except the inclusion of it in the judgment, and this is really done when the order is entered because the entry of the judgment containing it is including it therein. Since the purpose of the statute is to reimburse the county, it was clearly intended by the legislature that this fee should be paid in every case in which there is no reason why the one whose duty it is to pay it should be relieved from it. But to require the successful party to advance it does not accomplish this end in many cases, because it is frequently impossible, and often works a great hardship for him to do so, yet to relieve him relieves the losing party as well, even though no reason exists therefor, since the loser is required to pay to the winner only the costs he has expended and included in his cost bill; and its advancement in cases in which the judgment debtor might be able to show good cause why he should be relieved from paying it places it beyond the power of the court to grant relief, since the successful party is entitled to judgment for his costs. Inasmuch, then, as the temporary relief of the winner means the permanent relief of the loser, it follows that the proviso was intended to relieve against the final payment of this fee, rather than against the temporary advancement of it. No other construction enables the court to collect the fee when in its opinion the judgment debtor should pay it, and to relieve against its payment when it appears proper to do so. After the fee has been fixed and included in the judgment, that is, taxed as costs, it is required that it “be paid to the clerk of the court,” who then pays it to the county treasurer. By its inclusion in the judgment it becomes an obligation of the judgment debtor, to be discharged by him as the statute directs, by paying it to the clerk. Previous to that — 258 — time, however, it is the distinct obligation of neither, since one party, as much so as the other, incurred it, and under the statute the service rendered by the jury — a part of the court, irrespective of who demanded it, is as much for one as for the other. Hence, the provision that “all costs are payable at the time when the service is rendered” refers to the costs of the party, and not to the jury fee, which in reality is costs of the county. Having been awarded the judgment, the payment of this fee is of no concern to the successful party, but interests only the court and the judgment debtor. Such a course fully protects the county, because this portion of the judgment can be paid to the clerk as readily as to the successful party in all cases in which its payment is not excused by the court, and it does not penalize the party who recovers judgment by compelling him to advance it when it is impossible or works a great hardship for him to do so, by depriving him of its use for a period of time, perhaps during the pendency of an appeal, and by causing him to risk its recovery in all cases and to lose it entirely in some. It was not the purpose of the statute that he should be thus punished for proving that he was right in his contention. Clearly, it was not intended that the reimbursement of the county for this fee should depend upon a thing so uncertain as the voluntary payment of it by the successful party; yet the contention of appellant that the judgment debtor is required to pay it only when the judgment creditor has advanced it and put it in his cost bill leads to this result, because there is no provision of the statute expressly stating or even implying that the court may withhold judgment or deny its enforcement until the successful party has paid it. Such a construction would defeat the very purpose of the statute, for the successful litigant who would be willing to deprive himself of — 259 — the amount of this fee for a .short time even, and run the risk of recovering it from the losing party, merely to aid the county, would appear very rarely indeed. Such procedure is unlike that of any other jurisdiction, so far as disclosed by our investigation, but it was clearly within the power of the legislature to adopt it, and we know of no reason why the judgment of the court entered in accordance therewith may not be enforced by execution as in other cases, the executing officer observing the directions of the law (paragraph 638, supra) to pay the jury fee to the clerk of the court instead of the judgment creditor. The novel and unusual way adopted by the legislature to afford litigants in cases, if desired, a jury trial, without compelling the advancement of a jury fee, and still protect the county from that expense, when the court is of the opinion that the losing party is able and should pay, is no reason for its rejection. Because this plan has not been heretofore in use in this or any other jurisdiction does not mean the legislature may not adopt it. If it does not contravene any constitutional provision, state or federal, its novelty should not condemn it, or cause the courts to hesitate to carry it out exactly as intended. The judgment directing the appellant to pay the jury fee to the clerk of the court is affirmed. ROSS, J., concurs.