Levi v. Karrick

Lowe, J. This is an appeal from an order overruling a motion to retax tbe costs in tbe above entitled cause, made by one of the defendants (G. W. Jones), under tbe following circumstances: Tbe proceeding was one in chancery, touching tbe settlement of a complicated partnership. During tbe pendency thereof, it was referred to a master, J. H. O’Neil, Esq., whose report was made in tbe premises, with bis fees or charges indorsed thereon, and tbe same was confirmed, and a judgment entered accordingly. From this judgment tbe whole proceedings were removed into this Court, by an appeal. 'Without remanding tbe same, or any part thereof, to tbe court below, a final decree was entered in this Court between tbe parties, and tbe costs were ordered to be taxed against tbe defendant, G. W. Jones. For these costs, including tbe master’s fees, an execution issued from this Court to tbe Sheriff of Dubuque County. At tbe February Term, 1863, of tbe District Court of said [446] county, the defendant moved that court to re tax tbe costs which had been taxed in this court, and which were embraced, as we understand it, in the process of execution which had issued from this Coi\rt. The overruling of this motion must be upheld as founded in reason, law, a just practice, and the necessity of the case. That a chancery proceeding, when appealed from, after a final decree, can be pending in this and the District Court,' at the same point of time, subject alike to the control and action of either court, is against the whole theory of our system of jurisprudence. The simple matter of fact is, that when an appeal is taken, all power of the court below over the parties and the subject matter of the controversy is lost, until the cause, or some part thereof, is .remanded back, by order of this Court, for its further action. In this case that was not done. Now, had the District Court entertained this motion, and ordered a retaxation, either increasing or reducing the costs, how would its order be carried out ? If by execution, it must be issued without any judgment to support it. Again; it might conflict with a similar process in the hands of the sheriff, from this Court, and thus lead to a collision of authority. Without extending remark, we suppose the proper place to make such motion, would be in this Court, if such a motion could now be made at all. Of course, upon that question, we intimate no opinion. The order below will be Affirmed.