Rickard v. Fisk

MUNSON, J. The only case cited by the plaintiff in support of his right to this remedy is Weed v. Nutting, Bray. 28, where it is said that a justice judgment which includes more costs than the statute allows will be set aside on azidita querela. The opinion in Dodge v. Hubbell, 1 Vt. 491, criticises this case, and comments upon the inappropriateness of a remedy which requires the setting aside of an entire judgment because of an error in the taxation of costs. In Harriman v. Swift, 31 Vt. 385, where the judgment sought to be set aside was rendered by a justice, the court say, without discussion or citation, that it has long been held that a mere error in the taxation of costs is not a cause for vacating the judgment. In Clough v. Brown, 38 Vt. 179, it was held that the remedy was not available for the correction of an error procured by fraud ; but the judgment complained of in this case was rendered by the county court, and it may be claimed that the determination of the case was influenced by the view expressed in the opinion, that the plaintiff had a more just and appropriate remedy. It is distinctly said, however, that the correction of errors in a taxed bill of costs is not within the scope and application of the remedy by audita. In Johnson v. Roberts, 58 Vt. 599, it was held that this relief could not be granted when the excess was inadvertently taxed, and the complainant was present and ought to have discovered the error and procured its correction, and had not since tendered the legitimate part of the judgment. It appears from this opinion that an examination of the files in Weed v. Nutting disclosed the fact that the complainant in that case made a tender of the damages and legal costs, a fact not stated in the reported case. The plaintiff claims that the costs here were fraudulently taxed, and that the case must be distinguished from those where the excess was the result of an error or inadvertence. It is said in Clough v. Brown that the consequences to the [678] plaintiff are the same whether the improper taxation is procured by fraud or is the result of a mistake, and that the remedy or right to relief would seem to be the same in one case as in the other. However this may be, we find nothing in the statement of facts to show that this taxation was claimed by the party or allowed by the magistrate otherwise than in accordance with their understanding of the law. It is apparent from the above review that the decisions in this state afford some ground for saying that the writ of audita is never available for the correction of an erroneous taxation of costs. They certainly justify a denial of the relief when the erroneous taxation was not procured by fraud, and there has been no offer to pay the legal part of the judgment. Judgment affirmed. Thompson, J., was absent in county court.