Waikulani v. Carter

OPINION OF THE COURT BY WHITING, J. On motion of the defendant, a commission to take testimony in California was issued and on its return, the circuit court fixed the commissioner’s fee and expense at $15.25 and ordered it to be added to the costs of court. The case was discontinued by the plaintiff. The plaintiff’s attorney then withdrew the balance of the deposit required to be made with the clerk prior to this order of the court, and, there being no funds to the credit of plaintiff, the clerk charged the $15.25, commissioner’s fee, against the attorney for plaintiff, to which he objects, claiming that it is a cost of court incurred by defendants and not by plaintiff, ami that thereby the defendant’s attorneys are liable. The plaintiff’s attorney moved the Circuit Court for an order relieving him from liability, but the court overruled said mo [84] tion, it holding that under Hule 24c of the Circuit Courts, attorneys of a losing party are liable for all costs of court, and that the word “incurred” in said rule refers to the final liability for costs at the termination of a case and not to the time of the first inception of the costs, also that plaintiff’s attorney was liable for the commissioner’s fee as costs' of court, and he was ordered to pay the same. L. A. Dickey, pro se. -Kinney, Ballou & McGlanaham, contra. Hule 24c. Hules of the Circuit Courts. Attorneys shall be liable for costs of court incurred by their respective clients. The commissioner’s fee is costs of court. Section 13J2, -Civil Laws. “The costs of every application for any rule or order to be .made for the examination of witnesses under any commission by virtue of this Act, and of the rule or order and proceedings thereupon, shall be costs in the cause unless otherwise directed either by the judge making such rule or order, or by the judge before whom the trial or enquiry of the cause may be had, or by the court wherein the action shall 1 e depending.” This rule 24e was made for the protection of the court and not for the protection of the parties. Costs of court referred to in the rule cover only what are strictly costs of court. They do not include “fees” or’ disbursements. Kanahcle v. Wakefield 11 Haw. 259. The commissioner’s fee being costs of court, the clerk of court has the right to look to the attorney who is liable for costs of court, who in this instance is the attorney of 'the plaintiff. Exceptions overruled.