Parisher v. Waldo

Mr. Justice Scott delivered the opinion of the Court: This action was brought on an appeal bond, in the usual form. Judgment was rendered for $225, the penalty named in the bond, and also for the sum of $165.90, less the sum of $13, remitted. This is error. The judgment should have been, that the debt found should be discharged on the payment of the damages. Our laws make it the duty of the clerk to tax the costs adjudged against the unsuccessful party. When the fee bill is made up by the proper officer, it must be regarded as prima facie correct. On being furnished with a copy, if the cost debtor is dissatisfied with any item, he may replevy the fee bill and have the error corrected; or perhaps he could accomplish the same thing on a motion to retax the costs. The judgment debtor must challenge the illegal costs, in one mode or the other, in some direct proceeding instituted for that purpose. It will be found impracticable to do it in an action on an appeal bond—it presents a collateral issue. For the error indicated in the amount of the judgment rendered, the judgment will be reversed and the cause remanded. Judgment reversed.