Clough & Robinson v. Brown

The opinion of the court was delivered by Kellogg, J. The substantial cause of complaint set forth in the plaintiff’s writ is that the defendant’s costs, in the action in which the judgment was rendered by the county court in his favor against the [181] plaintiffs, were, by his fraudulent procurement, taxed by the clerk at a'much larger sum than the defendant was by the statute and the rules of the court entitled to recover ; and the question for decision is, whether audita querela will lie to correct the error. The plaintiffs’ declaration is defective in not asking for, or indicating, any relief, either specific or general, for the act complained of. It is not suggested that there is any error in the judgment, and the judgment ought not to be disturbed or set aside, if the plaintiffs can have adequate relief without doing so. If the costs were over-charged in the taxation, the plaintiffs’ relief would be complete by correcting the error as to the excess, and letting the judgment stand as a judgment for the sum which should properly be allowed. But, on audita querela, the judgment cannot be set aside in part and held good for the remainder; and the correction of errors in a taxed bill of costs is not within the scope and application of the remedy furnished by this writ. The consequences to the plaintiffs in the case of an overcharge in the taxation of costs would be precisely the same in the case of an error to the some amount happening by accident or mistake, as in the case of an error procured to be made by fraud ; and the plaintiff’s remedy or right to relief would'seem to be the same in the one case as in the other. In Weed v. Nutting, Brayton, 28, it was held that a judgment and execution of a justice of the peace, in a case in which a larger sum was given in costs than is allowed by the statute, will be set aside on audita querela; but this case was doubted in Dodge v. Hubbell, 1 Aiken, 491; and in Harriman v. Swift, 31 Vt. 385, it was held that a mere error in the taxation of costs was not a cause for vacating the judgment. In Goodrich v. Willard, 11 Gray, 380, it was held that audita querela did not lie to correct an erroneous taxation of costs, although the complaint in that case contained an allegation similar to that which is here made, viz: that the defendant fraudulently procured more costs to be taxed for term fees than were allowed by law. It has long since been decided that audita querela would not lie where the matter of the complaint is a proper subject for a writ of error. Weeks v. Lawrence, 1 Vt. 433; Dodge v. Hubbell, ib. 491. In Weeks v. Lawrence, it was said obiter, that “ if a mistake intervened in taxing costs, a writ of error would be the proper remedy. [182] or the court, on motion, would tax anew, as' justice required.” The remedy by petition or motion addressed to the court by which the judgment was rendered is clear, ample and appropriate for the correction of the alleged errors in the taxation of the costs of which the plaintiffs complain. In such a proceeding, relief can be granted to the plaintiffs without disturbing the judgment, or inflicting any wrong upon the defendant. If the costs are over-charged, the taxation may be reviewed and corrected on a petition or motion seasonably made. It is sufficient for our conclusion that the remedy on petition or motion is more just and appropriate than the remedy which is sought by this writ; and that it would give to the plaintiffs all the relief which they are entitled to claim. We think that audita querela does not lie to review or correct an erroneous taxation of costs. The judgment of the county court, sustaining the demurrer to the declaration, is affirmed.