Tanton v. Keller

Mr. Presiding Justice Dibell delivered the opinion of the court. First. Appellant insists that the order entered at the August term does not mean that T. O. Tanton, executor, shall' pay the witness fees of Lizzie Crawford taxed at the April term. The principle relied upon.is that where, at a prior term, the costs of that term have been adjudged against a party, and at the end of the litigation there is a general judgment for costs against the opposite party, the costs of the particular term are treated as having been already eliminated from' the body of .costs, and the general' judgment for costs is treated as applying only to the cpsts not there adjudgéd, and not as a modification of the former judgment of the court. Norton v. Hummel, 22 Ill. App. 194. The order at the August term was not a general judgment for costs, but was an order specifying certain particular items which the executor was required to pay. Thé claim that the fees of Lizzie Crawford taxed at the April term were not intended to be embraced in this latter order seeths to' be excluded by the specific language adjudging that the executor pay all the costs of summoning; attendanee and per diem, of the witness Lizzie Crawford. This is not general but special. The executor will not pay all the costs of attendance and per diem of Lizzie Crawford unless he pays the costs of her attendance and per diem, at the April term. . Second. Appellant contends that the order of the April term was a final judgment and the court had no power to set aside or disregard it at the August term, and that if the order at the August term was intended to have that effect it is void pro tanto. We can not concede the conclusion. The court still had jurisdiction of the cause and had all the, parties before it. Even if it was error to enter an,order at the August term having the effect of modifying the order of the April term,, yet the action of the court at the August term would still be binding upon the parties till reversed in a direct proceeding. But the action was not necessarily erroneous. If, at the August term, there had been presented to the court a stipulation signed by the executor, consenting that all the witness fees of Lizzie Crawford might be paid out of the estate, and that the order of the April term might to that extent be modified, surely such a showing would justify the orden in fact made. Again, the order of the April term is very general. Complainant was required to pay “the cost herein taxed of this term.” No other-witness fees were taxed on either side at that term. It may have appeared to the court at the trial at the August term that Lizzie Crawford knew nothing material to the case; and that- no witness fees had been taxed or anticipated when the order of the April term was entered. In view of the general terms of the April order we can not hold the court would have been powerless to afford relief in such case. The court at the August term had some showing before it which caused it to make the order it did. . The executor did not preserve the showing or assail it in a direct proceeding. We must therefore presume it was. ample to support the order. It was rendered by a court having- jurisdiction of the parties and subject-matter, and supersedes the former order so far as relates to the fees of Lizzie Crawford, and it. has not been reversed. While it stands unreversed the executor can not have a fee bill against appellee for said costs. Third-. We are unable to see that the injunction suit affects the rights of the parties. Appellee mistook her remedy and has suffered for it. But the dismissal of the bill only adjudged she was not entitled to relief by injunction. The order will be affirmed.