Macleay Estate Co. v. Miller

Opinion Per Curiam: 1. The procedure relating to demands of this sort and contests thereupon is prescribed in Sections 569, 570, L. O. L. A party claiming costs and disbursements may file his bill without serving the same, unless otherwise required by rule of court, within five days after the rendition of the judgment. After the expiration of that period, but not later than the first day of the next regular term, the statement of disbursements may be filed, but in such case it must be served on the adverse party whether he has appeared or not. Within five days from the expiration of the time allowed to file such a statement the adverse party shall file his objections thereto. The statement of disbursements and the objections constitute the sole pleadings in this ancillary litigation. The court or judge is then required to hear the matter and, as soon as convenient thereafter, shall make and file with the clerk a correct itemized statement of the costs and disbursements as allowed and shall render judgment thereon accordingly for the party in whose favor the same were allowed. [626] This is conclusive as to all questions of fact, but an appeal may be taken from the decision of the court or judge on the allowance and taxation of costs and disbursements on issues of law only. The service of the cost bill was a notice to the plaintiff of the amount to be claimed by the defendants. It then had five days after the filing of this statement within which to file its objections. Although they were filed before the cost bill itself was filed, yet the objections were in fact before the court as well as the bill itself. If the defendants considered them 3m-providently filed, their remedy was by motion to strike them out the same as though they had not been properly verified or there was some other objection to the form of the pleading rather than to the substance. "With this statement of disbursements on the one hand and the objections thereto on the other in very truth before it, the court should have considered them on their merits in the absence of a motion to strike out the objections as not being filed in the proper time. Of course, if the cost bill had not been filed at all after having been served, the objections would have been inert; but it would be sacrificing substance to form to decline to consider them with the bill filed as it was, in the absence of a motion to strike them out. 2. The court should have made a detailed statement of costs and disbursements proper to be allowed. The judgment was erroneous in this respect and it becomes our duty therefore to make such a correct statement. Section 566, L. O. L., grants to a party entitled to costs the right to recover all necessary disbursements including the fees of officers and witnesses and the like: In a suit in equity, costs and disbursements are allowed to the prevailing party unless the court shall otherwise order: Section 567, L. 0. L. The disbursements, how [627] ever, are to be confined to what is necessary. In the issue presented to the court the decision of which was determinative of the litigation, no question of fact was involved. The decision rested solely on a matter of law. Witnesses were not at all necessary in the trial of such a dispute. All claim for such items must therefore be disallowed. No error is assigned respecting the objection to the filing fee; hence that matter will not be considered. On the whole case, therefore, from the record before us, we find that the judgment concerning costs and disbursements should be modified and that they should be taxed in favor of the defendants as to the matters occurring in the Circuit Court as follows: Clerk’s fees........................$ 5.00 Costs..............................10.00 Notary’s fees....................... 1.00 Total......$16.00 It is so ordered. Modified.