Andrews v. Cressy

By the Go%vrt. I. Atwater, J. The only error complained of by the Plaintiff in Error, in the judgment in this cause, is the amount of costs inserted in the entry of judgment. The Plaintiff’s attorney appeared before the Clerk to oppose the entry of costs on the judgment, at the time when they were to be adjusted. The attorneys for the respective parties being -unable to agree as to the proper amount of costs in favor of — 74 — the Defendant, they stipulated in writing, to refer the whole matter to the Hon. C. E. Elandrau, Judge of the Court in which the action was brought,'although no formal order was made by the Judge in regard to the costs, yet it appears from the return, that he did examine and pass upon the bill of costs, which was in dispute between the parties, struck out an item of $3, and allowed the balance, amounting to $87,85, which were inserted by the Clerk in the entry of judgment. The Statute has made no provision for the taxation of costs. Sec. 9, page 371, of Revised Statutes, provides “ that the Clerk must insert in the entry of judgment, on the application of the prevailing party, upon two days’ notice to the other, the sum of the allowances for costs as above provided,” &c. No method of reviewing his acts has been provided by Statute. It was probably supposed that the costs and disbursements, beingffixed by Statute, could be easily ascertained and settled by the parties or their attorneys, before the Clerk. In fact, however, many important questions do still arise respecting costs, which not less demanda judicial decision, than other matters in controversy, and we are not disposed to concede that because the Legislature has failed to provide any specific method of reviewing the action' of the Clerk in the matter of inserting costs in the entry of judgment, that parties who may be aggrieved thereby, are remediless. The Statute above quoted is substantially the same as'that of New York, as amended in 1857. It was held in the case of Whipple vs. Williams, 4 How. Pr. Rep. 28, that the acts of a Clerk in adjusting and settling the amount of costs are not necessarily final and conclusive, because no review is expressly given. The Court has, as one of its incidental powers, the right to control the legal acts, and compel a performance of legal duty of all its inferior officers, and the exercise of this power is peculiarly necessary in the formal and proper entry of judgment. In Beattie vs. Qua, 15 Barb. 132, it was held that if the adjustment of costs by the Clerk of a County Court is erroneous, the remedy of a party aggrieved is by a motion in that Court in the nature of an appeal from the decision of the Clerk, not by an appeal from the judgment of the Court. This would seem to be the correct practice, and it is proper the action of the Clerk should — 75 — in the first instance be reviewed by the District Judge. But that authority does not go to the extent of declaring the decision of the District Judge final in the matter, nor is there any reason from analogy, why errors of law in that Court upon this point, should not be reviewed by writ from this Court, as well as upon any other subject. In the case at bar, this course was substantially pursued. The stipulation of the attorneys for the-parties, (which is a part of the record,) referring the whole matter to His Honor, Judge Flandrau, stands in place of a formal notice of appeal and hearing, and his decision of the matter, though informal, is made a part of the record, and is equivalent to an order, adjudging the amount the Defendant is entitled to recover. It may well be doubted, whether this would be an appealable order; but the Plaintiff has not appealed from the order, but brought a writ of error upon the judgment, in which it is claimed, and we think properly that the error may be reviewed if any has been committed. It will be necessary therefore, to examine the costs and charges objected to, in order to determine whether they were all legal costs. Charges are made in the bill to the amount of about forty-two dollars for witness fees and mileage, it being claimed that seven witnesses were in attendance, some six and others four days. ' There was also an item of $18,78, for “ expenses in procuring transcript of judgment and authentication, and copies of deeds and certificates of authentication.” The affidavit of verification to this bill of costs simply states that “ the foregoing items of costs and disbursements have been paid and incurred in this action by the Defendant.” Such an affidavit is entirely insufficient to meet the requirements of the Statute, loose even, as this is upon the subject. This only authorizes the insertion in the entry of judgment of'“ necessary” disbursements, and it devolves upon the party claiming them to show at least ¡prima facie that they are necessary and not upon the opposing party to prove the contrary. The least that could be required in regard to these disbursements, would be, that the party should state in his affidavit, that they were “ necessary.” "Without such statement, the affidavit of verification would be worthless, for any practical purpose. And in — 76 — regard to claims for attendance for so large a number of witnesses, and for copies of such papers as are mentioned in the bill of costs above referred to, it would be not unreasonable to require the party to state the facts showing then* necessity. It cannot be permitted that a party should make a large bill of costs for witnesses and copies of papers, and insert the same in the entry of judgment, on an affidavit merely that “ these costs have been paid and incurred.” He must show the Court that they were necessary. It is true a further affidavit of the Defendant appears in the record stating in substance, “ that the witnesses whose names are mentioned in the bill of costs, actually attended 'at the Court for the purpose of testifying for him in said action, and that they travelled the number of miles and attended said Court the number of days in said notice mentioned, and that the item of $18,75 was actually expended and paid out by him in procuring the transcript and copies therein mentioned.” It does not appear that this affidavit was used either before the Clerk or Judge to whom the matter was referred, as the affidavit bears date the 11th of May, (the same day that judgment was entered,) and the filing of the stipulation to refer, bears date the 30th of April. But however this may be, this affidavit is also defective in the most important respects. It states that the witnesses attended Court for the purpose of testifying for Defendant, but does not state that they attended the number of days mentioned and charged for, for that purpose. Bor aught that appears, they might have been in attendance on business entirely foreign to this suit. Indeed, as it apj>ears from the record, that in the third day of the term, the cause was set down for the ninth day of the term, the inference is strong that these witnesses were not necessarily in attendance for six days. It does not follow of course, that where a cause is set down for a particular day, that a party cannot charge for witnesses’ fees during the intervening time. This must always be governed by the circumstances of the case. If the time was short, and the witnesses lived at a considerable distance, the party might be justified in keeping his witnesses in attendance. If on the other hand, considerable time was to elapse (as in this case,) and the witnesses were convenient, a party — 77 — ought not be permitted to charge for the attendance of his witnesses, on days when not needed. To allow this, would make the law an instrument of oppression and injustice. Of the four witnesses charged six days each, it appears one lived one mile distant, one ten, and two twelve, or at least their mileage is charged for these distances. It does not appear that these witnesses were in attendance earlier than the third day of the term, and if so, it would be unreasonable to keep them in attendance and charge for the same until the ninth day of the term, when the cause was dismissed. The requisites of an affidavit to tax costs for witnesses, are stated in Ehle vs. Bingham, 4 Hill, p. 495. Although that decision was made with reference to a particular statute regulating the practice in New York, yet no reason is apparent why the rule there laid down should not obtain in the Courts of this State. Indeed, it would seem entirely reasonable that even more should be stated in the affidavit, than is there required, and that not only the number of days, but the dates of the attendauce of each witness should be shown. The case at bar is an instance of the necessity of such rule, as otherwise there would be no means of ascertaining whether the charges were for the days when the attendance of the witnesses was necessary. See further on this subject, Dean vs. Williams, 6 Hill, 376: 3 Hill 457; Schermerhorn vs. Vam Voast, 5 Hill, 458; Dowling vs. Bush, 6 How., 410; Hager and Wife vs. Danforth, 8 How. 448Wheeler vs. Lozee, 12 How. 446; Taylor vs. McMeeham, 2 Bailey, 131; Wheeler vs. Lozee, 12 How. 446; 11 ib. 160; 6 Wend. 562. The affidavit is also totally defective in respect to the charge of $18,75 for transcript and copies of papers, mentioned in the bill of costs. There is no allegation whatever that these papers were necessary on the trial of the cause, nor even that they were procured to be used for that pm-pose. If such practice is countenanced, and parties are to be mulcted in costs on the mere affidavit of the party that the “ costs and disbursements have been paid or incurred, ” it would open a wide door for illegal and improper charges, and leave the Courts powerless to prevent them. It is very questionable whether some of the papers charged for, could have been used at all upon the trial — 78 — as evidence, and the bill of costs should have specified the charges separately, in order that the charge for such might be ■stricken out, if any appeared. The judgment must be reversed, with costs, and cause remanded for retaxation.