Palmer v. Glove

Opinion of the court by Mr. Chief Justice Howk. In this action, the appellee sued the appellants upon a judgment which he had recovered of and from them, on the 30th day of March, 1877, by the consideration of the court below. This suit was commenced on the 24th day of September, 1880. The appellants jointly answered the appellee’s complaint, by a general denial thereof. A trial of the cause by the court, resulted in a finding for the appellee, in the sum of’$1,611.95; and over the appellants’ motion for a new trial, and their exception saved, judgment was rendered on the finding. In their brief of this cause, the appellants’ counsel say: “ The errors, we will insist upon, arise on a motion for a new trial, and for the specific reasons that the finding and judgment are contrary to the evidence, are excessive and contrary to law, and are not sustained by sufficient evidence.” In Gould v. Hayden, 63 Ind. 443, it was said by this court: “A judgment is a ‘debt of record/ and, whether foreign or domestic, an action may be maintained thereon for the recovery of such debt, even where it might appear that the judgment-plaintiff could enforce the collection of his judgment by an execution issued out of the court in which it was rendered. Davidson v. Nebaker, 21 Ind.334. The judgment-plaintiff, of course, controls his judgment-He may enforce its collection by the process of the court iñ which he obtained his judgment, or he may, if he may elect so to do, use his622 judgment as an original cause of action, and bring suit thereon in the same or some other court of competent jurisdiction, and prosecute the same to final judgment.” The point made by the appellant’s counsel, “ that appellee’s right of action is a bare technicality of questionable policy,” is not well founded; and certainly he cannot, under the law, be “ called upon to give any reason or cause for bringing this suit, when he already had a judgment.” It is claimed by the appellants’ counsel, that the damages assessed by the court were excessive, in this, that they were assessed at the sum of $3.90 in excess of the aggregate amount of the original judgment debt, and of the interest accrued thereon, and of the costs taxed on the original judgment at $34.30, without interest thereon. This point is well taken, if it can be correctly said that the appellee was not entitled to recover interest on his judgment for costs; but if the appellee was entitled by law, as we think he was, to recover interest on his judgment for costs, then the damages assessed by the court, instead of being excessive, were not enough by the sum of $3.42. In section 2, of “An act concerning interest and usury,” approved March 10, 1879, it is provided as follows: “Interest on judgments for money hereafter rendered, shall be from the date of the return of the verdict or finding of the court, until the same shall be satisfied, at the rate per cent, agreed upon by the parties in the original contract, not exceeding six per cent., and if there is no contract by the parties, at the rate of six dollars a year on one hundred dollars.” Acts of 1879, p. 43. This is substantially a re-enactment of section 3 of the act of March 7, 1861, “regulating interest on money,” etc. 1 R. 8.1876, p. 600. The only material difference between the two sections, is that, under the older law, “judgments for money” bore interest from the date of signing the same, while under the law now in force such judgments bear interest “from the date of the return of the verdict or finding of the court.” It is settled by the decisions of this court, that “-the costs recovered by the judgment are due to the judgment-plaintiff, and it is his right to control and receive the moneys so recovered,” and that “a judgment in favor of a party for costs is, therefore, as much his own property, and under his own control, as a judgment for a debt sued for.” Armsworth v. Scotten, 29 Ind. 495 ; Hays v. Boyer, 59 Ind. 341; Miller v. The State, 61 Ind. 503; and Goodwin v. Smith, 68 Ind. 301. [623] If a judgment for costs is a “judgment for money/’ and it surely is, then by the express terms of the statute it bears interest, from the date of the return of the verdict or finding of the court, until the same shall be satisfied,” and the judgment-plaintiff, in an action upon his judgment, is as much entitled to recover interest upon his judgment for costs, as he is upon his judgment-debt. We are of the opinion, therefore, that the appellee’s damages, assessed by the court, were not excessive, as claimed by the appellants, but that, on the contrary, they were not enough; and of such an error, in the assessment of the amount of the recovery, the appellants do not complain. But the appellants’ counsel insist that the appellee had no right to recover said $34.30 costs, because, at the time of the rendition of the judgment, the costs had not been taxed, and the entry of the judgment did not contain any specific amount of costs. The form of the entry was, that the appellee recovered from the appellants a certain sum of money, “ and his costs and charges by him in and about this suit laid out and expended.” Counsel think that this entry of the judgment for costs was not sufficient; but we think it contained all that was necessary. We know of no law which requires that the entry of a judgment on the order-book should specify the amount of the costs recovered. But counsel say, that “the fee-book offered in evidence was but an exparte statement of the clerk, to which the appellants were not parties.” The fee-book is a public record, which the clerk is required by law to keep in his office, and to tax and charge therein the fees and costs in each and every suit in the court of which he is clerk; and his entries in the fee-book are no more his exparte statements than are his entries in the order-book or any other record of his office. Judgmentrdefendants are bound by the lawful entries of the clerk against them in the fee-book, and they will at least act wisely if they take notice of their contents. The appellants’counsel also insist that the appellee ought not to recover the costs in the original judgment, because of the provisions of section 39 of the fee and salary act of March 12, 1875. This section provides that “ No action shall be maintained On any fee-bill, due to any person, so long as the party owing the same shall reside within the jurisdiction of the court issuing the same.” [624] 1 R. S. 1876, p. 478. This section does not seem to have been reenacted, either in form or substance, in the fee and salary act of March 31, 1879, and it might well be doubted, if the latter act did not repeal the section above quoted. But, whether the section is repealed or not, it is certain, we think, that its provisions are not applicable to the case now before us; this is, in no proper sense, an action upon a fee-bill. In legal parlance, a fee-bill is a writ issued against a party making costs, which he has not paid; and this writ may issue against such party, without regard to any judgment for costs, which had been or might be rendered therefor, either for or against such party. Several objections are made by the appellants’ counsel to the costs, and to different items of costs, which we need not stop to consider. The fee-book was a record of the court, and, as such, it was competent evidence, and it proved the amount of costs due the ap-pellee in the original judgment, in accordance with the finding of the court. If the costs, or any of the items thereof, were improper or illegal charges against the appellants, they might have had a taxation of the costs by a motion for that purpose, in the original case; but they could not, we think, on the trial of the case at bar, impeach the judgment for costs, in whole or in part, by the introduction of parol evidence. Finally, it is urged by the appellants’ counsel, that the evidence on the trial was incomplete, because it did not appear that the files in the original suit had been given in evidence. On this point, it is enough for us to say, that the evidence in the record tended strongly to sustain the finding of the court, on every material question involved in the issues. In such a case, we can not disturb the finding of the court, on the weight of the evidence. When the entry of the judgment, on the order book, was offered in evidence, the only objection to its admission, pointed out by the appellants, was that no evidence had been offered or proposed, showing that the judgment offered was against them, or in favor of the appellee. They have abandoned this objection, as they had the right to do, in this court; but they can not here insist upon an objection to the evidence, which they failed to make in the trial court. The motion for a new trial was correctly overruled. We find no error in the record. Friedly & Pearson, for appellants. Dunn <fe Dunn, for appellee. The judgment is affirmed, at the appellants’ cósts.