Weissinger v. State

GOLDTHWAITE, J. 1. The statutes which authorize the fee to the attorney, as well as the county tax, speak of suits either as commenced or prosecuted or defended. [Dig. 236; Ib. 575, § 94.] In our judgment, there is no sufficient reason to consider the estreating of a recognizance by a judgment nisi, as a suit either commenced or prosecuted. The judgment nisi is in no sense of the term, process commencing a suit, but is rather the foundation upon which a suit may afterwards be prosecuted by sci. fa. We think it clear the items, both of attorney’s fee and county tax, were improperly taxed, and should have been rejected by the court. 2. But the Attorney General urges that the State has no interest in this matter, and therefore should not be a party to the writ of error, but rather that those interested in the fees allowed should litigate this question. It would perhaps be desirable that such a rule could be adopted, as suitors would thus be relieved from prosecuting questions in which they have little or no interest; but we are aware of no warrant to introduce the officers of court upon the record, even in matters of cost. The question of taxing and re-taxing costs has been several times before the court by writ of error — [Kelly v. Renfro, 10 Ala. Rep. 338; Braly v. Hodges, 3 Porter, 336; Smith v. Donaldson, 3 S. & P. 395] — and although the practice is certainly inconvenient as well as expensive, there seems no other mode in which a revision can be had. 3. In this cause, however, the writ of error must be dismissed because of the omission of the record to disclose that •any judgment whatever was rendered on the motion to re543 tax the costs. The only judgments which are made to appear in the transcript are those estreating the recognizance and afterwards discharging the defendant from the indict-. ment by sustaining a demurrer to it. Neither of these are brought up by the writ of error, and if they were both before us, there is nothing to reverse them. It is true, the bill of exceptions states the questions supposed to arise, and on which our opinion has been already expressed, but this will not supply the place of a judgment. For any thing which appears, the same questions may again be considered at another term, and the costs then re-taxed. Writ of error dismissed.