Opinion
02-28-1887
PEARMAN v. GOULD and others.
J. F. Cahill, for the motion. J. S. Barlalow, contra.
Motion to retax costs.
J. F. Cahill, for the motion.
J. S. Barlalow, contra.
BIRD, V. C. The solicitor of complainant asks to have $16.20, the amount paid by the complainant for printing the testimony taken by the defendant, included in his bill of taxed costs. This he is entitled to.
He asks to have three additional term fees allowed. Having already had three, he is not, under the rule and practice of the court, entitled to any more.
He also asks to have allowed $10 for five days attendance of foreign witness. The witness was in attendance under subpoena, but no fees were paid to him, and the only obligation for the witness to attend was the promise of the complainant to attend the trial of a cause in which the said witness was interestedor a party, and to testify therein. I do not think this claim comes within the purview of the law. I think that the only consideration for the taxation of witness' fees is the payment of, or the obligation to pay, money. It seems to me quite plain, that, if any other consideration should be upheld, the very greatest abuses would follow.
The solicitor of the complainant was sworn, not, however, to establish the case against the defendants, but only to free himself from an apparent neglect of professional duty. For this he asks 50 cents. I cannot so advise.
He asks likewise 50 cents for another witness who was sworn. As the case stands, I cannot advise this. It appears from the bill, as already taxed, that one dollar has been allowed to the complainant for witness' fees. It does not appear for which witness. Nor has it been shown that the witness for whom the 50 cents is claimed is not one of the witnesses for whom payment has been allowed. This uncertainty in judicial proceedings, even in the matter of costs, is very unsatisfactory. All of these claims for witness' fees are in one item in the notice for retaxation, which is all uncertainty, and which is still so uncertain, after the testimony of the solicitor, that I cannot advise an order thereon against the defendant.
An item of $45.83, sought to be included, arose as follows: After the complainant filed his bill to quiet the title to the land in question, the defendant, by its answer, pointed out an obstruction to the complainant which in this suit could not be removed. But it was removed by an independent suit, between other parties than this complainant or the defendant, against whom these costs are charged. This defendant was in no other way responsible for those costs than above indicated. This statement, I think, is enough to show that it would be unjust in the extreme to require the defendant to bear this burden.
Costs on this motion are asked for. I think that this would not be within the practice in such cases. The motion to retax is not made until after the decree and costs as first taxed were paid in full, and a receipt, as in complete satisfaction, had been given; a very different case from one arising upon the first taxation and before payment.