Chapman v. Pocock

Stone, J. The only question brought up for review relates to the taxing of costs in the case. The plaintiffs were one of eight different sets of attaching creditors, who brought separate suits against the defendants in the district court of Lake county. Upon petition of all the plaintiff creditors a receiver was appointed by the court to take and dispose of the goods of the defendant firm for the benefit of the creditors. The goods, when seized by the sheriff under the attachment writs, were in the hands of a third party, who intervened in the suits as prior claimant of the property. The suits were after-wards dismissed at the costs' of the plaintiffs, according to stipulation, the receiver was discharged, and all the property and proceeds in the hands of the receiver ordered to be paid and delivered to the intervenor. A referee was appointed by the court to investigate the accounts and doings of the receiver and report his proper compensation, and upon a hearing had upon the report of the referee, and upon exceptions to the report of the receivei’, the court approved the receiver’s report and taxed up the costs as follows: the clerk’s and sheriff’s fees were taxed to each party plaintiff as the same were incurred by each severally, and the total amount of the fees, costs and ex [205] penses of the receiver, as approved by the court, was divided into eight equal parts, and one-eighth of the whole taxed against each of the eight parties plaintiff. At a succeeding term of the court, and before another judge of said court, defendants moved for final judgment against the plaintiffs for the costs as theretofore allowed and taxed, when a cross-motion was made by the plaintiffs in error herein to retax the costs so as to apportion the costs of the receiver in proportion to the respective amounts sued for by each party plaintiff, instead of taxing an equal portion to each. The amounts of the several claims sued for varied from a few hundred to several thousand dollars, that of the plaintiffs in error being $328.80, and the largest of the others being $4,413.67; and it was claimed by plaintiffs in error to be inequitable that each should be taxed a like amount of the compensation and costs of the receiver. In respect to the amount of compensation and costs allowed the receiver, which appears to have swallowed up the most of the property that came into his hands, and in respect to the proportion of costs taxed to plaintiffs in error, which greatly exceeded the amount of their entire claim against the defendants, the case certainly presents features of hardship rarely met with in litigation; but there is another feature of the case, a consideration of which precludes us from interfering to reverse the ruling and judgment of the court below complained of. Since the property attached passed out of the hands of the defendants, and was adjudged by the court to go to the intervenor, the plaintiffs dismissing their suit at their own costs, it is evident that a retaxation of the costs would not affect the defendants in the least. The only parties to be affected by such retaxation of costs are the other plaintiffs, the co-plaintiffs of plaintiffs in error, and those parties, not having been made parties to the action in this court, are not before us. In this view it is unnec [206] essary for us to pass upon the question whether, if such co-plaintiffs had been made parties to the scire facias herein, this court would be warranted, upon the case presented by the record, in reversing the ruling of the court below, and directing a retaxation of the costs, as prayed by the plaintiffs in error. It is sufficient to say that the only parties to be affected adversely by the relief sought herein are not before us, and hence we cannot review the ratings and judgment of the court below, in the absence of proper and necessary parties to the action therefor. Affirmed.