Workman v. Doran

Luoas, President : On tlie lltli of March, 1884, William Workman and wife, plaintiffs below and appellees here, gave to one L. Kessler an option on three thousand acres of land lying in Boone county at three dollars per acre. The option was, however, to expire upon certain terms and conditions not being complied with, notice thereof being served upon the purchaser by the owner of the land. On the 15th of March, 1884, Kessler assigned to one Joseph I. Doran, in trust for Horace J. Subers and Everett Gray. At J une rules, 1888, Workman and wife filed their bill in the Circuit Court of Boone county to remove as a cloud upon the title of their land tlie effect of the contract of option by setting it aside and cancelling it, and requiring the defendants to execute a release. At February rules, 1889, the plaintiffs filed an amended bill, wherein they set out, in addition to the facts stated in the original bill, that on February 14th, 1888, the said Doran had executed a release of said option, wherein he admitted that the same had ceased and determined by reason of his failure to comply with its terms, which release was recorded in the clerk's office of Boone County Court, pendente lite, to wit, on the 17th July, 1888. On the 16th of April, 1889, the defendants demurred to the original and amended bill, which demurrers the court subsequently overruled. The cause was heard finally on April 24th, 1890, and the Circuit Court held that the said option had ceased, by reason of a failure to comply with its conditions, and declared the same to be null and void, but awarded no costs against defendants. The defendants in this case having formally released all interest in the subject-matter of controversy, and deliberately recorded the release, are estopped to complain that the court below has, without any cost to them, put the seal of a judicial sanction upon the defendants’ own construction of their rights. The principle laid down in Railroad Co. v. Vanderwarker, 19 W. Va. 265, that a party must be consistent in the assertion of his' rights before the court, applies with eminent propriety to this case; and, even if there were error in the action of the court below in the ap [606] pointment of a special judge or other steps in the progress of the case, it is impossible to see how the appellants have been prejudiced thereby, since no costs have been awarded against them, and they have been deprived of no rights which they had not previously relinquished in a deliberate and formal manner, before and during the progress of the suit. For these reasons we find no error in the judgment of the Circuit Court, and the same must be affirmed. Judgment Affirmed. At the regular term of this Court, held in Charlestown, a motion was made by the appellees to dismiss this appeal as improvident]y awarded. The court overruled the motion, and awarded costs against the party making it. At the present term a motion has been made by the appellees to correct the former order entered in Charlestown, so far as relates to thii'ty dollars, included by the clerk in his taxation of costs. Section 11 of chapter 138 of the Code prescribes that “in every case in an appellate court costs shall be recovered in such court by the pai-ty substantially prevailing.” It is further provided, by section 13 of the same chapter, that the clerk shall include in the costs to the party prevailing in the court of appeals, thirty dollars. Though not expressly so stated in the law, it is by practice established, that this thirty dollars is intended as the attorney’s fee in the taxation of costs. In the matter of a motion, which, should it prevail would finally dispose of the case, this Court in its discretion may award costs; and in such .case the clerk, in taxing costs awarded to the prevailing party, should include the thirty dollars above referred to and described. This Court at its former term having awarded costs to the party who prevailed on the motion to dismiss, and the clerk having taxed properly the thirty dollars, we see no good reason why we should interfere with the judgment of this Court made at a former term, even should it be conceded that we have the power. Motion Overruled.