Wall v. Rabito

PROVO STY, J. Plaintiff sued for the recovery of certain real estate of which defendant had possession. There was judgment against defendant condemning her to deliver up the property and to pay the costs of the suit. Thereupon, in order to close the door upon all possible controversy as to whether the officers of court had properly or not charged the costs, plaintiff took the usual rule to fix costs. Instead of answering simply yes or no as to whether these costs had been properly charged or not, the defendant has sought to plead in compensation of these costs an alleged claim for taxes paid upon the property by her while she had possession of it. If the question before the court were as to whether she owed these costs or not, or as to whether she should pay them or not, perhaps she might be allowed to set up some reason (compensation, or other) why she does [889] not owe them; but the question is simply as to whether the costs have been properly charged or not by the officers. The question of her owing them and having to pay them was decided by the final judgment against her. She cannot be allowed to ingraft upon this summary rule to fix costs some new litigation with the plaintiff. Judgment affirmed. MONBOE, O. J., takes no part. See concurring opinion of O’NIELL, J., 81 South. S82.