Ross v. Heathcock

Cassoday, J. The three several orders appealed from will be considered in their order. 1. The order of July 6, 188%. There can be no question but what a circuit court has jurisdiction to review the action or non-action of its clerk in the taxation of costs. Sec. 3, Buie XXXIII, expressly gives such authority on the mere motion of the party aggrieved. The court having on motion made the order referring the same back to the clerk for retaxation, after a hearing and argument by the attorneys for the respective parties, and without any objection to such hearing having been interposed by either party, as appears from the record, we must hold that the learned counsel for the defendants is in no position to claim that the matter came before the court irregularly upon mere notice of appeal to the presiding judge. The court being empowered to hear such motion, and the attorneys for the defendants having ajjpeared and argued the same without objection, must be deemed to have assented to such hearing, and to have waived any objection to the irregularity in the notice. This was substantially held in Hlawacek v. Bohman, 51 Wis., 92. The case is clearly distinguishable from Schauble v. Tietgen, 31 Wis., 695, and Card v. Southwell, 15 Wis., 211, for here the motion was not entertained by the judge at chambers, but by the court. The onty doubt we have had in relation to the matter is whether the court should not have retaxed the costs and directed the insertion of the same in the judgment. But the rule referred to expressly required the clerk to note on the bill of costs all items disallowed, and all items allowed which [96] had been objected to, and the court’s review of the same was confined to such bill of costs and disbursements, and the papers and vouchers on file in respect thereto; and further provided that “ no objection shall be entertained on such review which was not made before the taxing officer, unless the court shall otherwise allow, in order to prevent great hardship or manifest injustice.” The clerk having failed to preserve such papers and record, and the same having been lost so that they could not be found, and without any fault of the plaintiffs or their attorneys, and the same not having been fully supplied, we think it was competent for the court to refer the same back to the clerk for retaxation, in order that he might make a record upon which to base his own action, or which the court could, if necessary, on motion, review. Such being the power of the court, we are clearly of the opinion that the order made by the court duly 6, 1882, should have been respected and obeyed by the clerk, instead of being disregarded. Nan v. Suelflohn, 45 Wis., 438. For these reasons we think the order of July 6,1882, should be affirmed. 2. The order of October 6, 1882. The clerk’s action July 24,1882, in disregarding the order, and inserting in the judgment the amount of costs and disbursements as taxed October 14, 1881, without any retaxation as ordered, Avas, we think, a mere nullity. Such papers and record being lost, there was nothing of record upon which to base such entry. Certainly, after the making of that order by reason of the absence of such records and papers from the file, the clerk was not authorized in disregard of it to arbitrarily, and Avithout a hearing of the party claiming to have been ag-' grieved, determine the controversy in advance, and fill the blank in the judgment from his mere recollection of the contents of the lost papers. Of course, a clerk is an officer and responsible only for the faithful performance of his duties as such; but he is an officer of the court, and a part of his duties consist in recording the will, direction, and [97] judgment of the court. To that extent he is the amanuensis of the court. The sanctity of his record, when so acting, is by reason of the fact that it proceeded' from the court. To disregard the direction of the court and fill the blank in a judgment in defiance of such direction, is to presumptuously refuse to perform the duties of an amanuensis and clerk and assume the functions of the court. The toleration of such a practice would not be promotive of justice, nor serve any good purpose. The costs and disbursements having, in effect, been inserted by the clerk in the judgment without authority, there can be no question as to the power of the court to stay proceedings on an execution issued for the collection of the same. Such right of staying proceedings on process of the court by the court, is essential to its administration, and has often been sanctioned. Lansing v. Orcott, 16 Johns., 4; Smith v. Page, 15 Johns., 395; Chipman v. Bowman, 14 Cal., 157; Logan v. Hillegass, 16 Cal., 200; Nan v. Suelflohn, 45 Wis., 438. Many cases might be cited were it necessary. Some of the above cases hold that the proper remedy is by motion in the case, and not by injunctional order in an independent suit for that purpose, as counsel contend. For the reasons given, we think the order of October 6, 1882, should also be affirmed. 3. The order of October %h 188%. The clerk having filled the blank in the judgment with the amount of costs and disbursements as originally taxed by him, without retax-ation or consent of or notice to the plaintiffs or their attorneys, and in defiance of the order of the court, the same was a nullity, and properly erased and expunged from the judgment. Such practice was sanctioned in Henderson v. Allen, 56 Wis., 177, and Johnson v. Curtis, 51 Wis., 595. In this last case an order refusing to so strike out an unauthorized insertion of costs was reversed by this court. By the Court.— The three several orders appealed from are each affirmed.