Behr v. Baker

241 N.W. 229 | Mich. | 1931

Lead Opinion

RETAXATION OF COSTS. I think the rule (Court Rule No. 5, § 7) is valid under which the premium paid for the stay bond was taxed. General rule making power is conferred upon this court by the Constitution (article 7, § 5); and, further, by legislative enactment "the regulation of costs" by rule is specifically left with the court. 3 Comp. Laws 1929, § 13540.

The amount of the taxable costs will remain as determined by the clerk.

CLARK, C.J., and McDONALD, POTTER, SHARPE, FEAD, and BUTZEL, JJ., concurred with NORTH, J.

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Dissenting Opinion

This is an appeal by plaintiffs from taxation of costs by the clerk, and questions the items for printing the record and the brief, inclusive of an abstract of the testimony, also fee for bond on stay of proceedings.

Defendants contend that the rules do not provide for an appeal, and, therefore, it should not be entertained. The power is inherent in the court and needs no rule.

Plaintiffs claim that the amounts taxed for printing the record and brief are in excess of a reasonable amount.

The record is somewhat prolix, and the abstract of testimony lengthy, but comply with the rules, and the cost thereof is established by the printer.

Plaintiffs make the following objection:

"They object to the item of $500 for the premium on bond to stay proceedings, on the ground that there is no rule or statute authorizing the taxing of such sum, or any sum, paid as premium on bond to stay proceedings; that a bond to stay proceedings is not a bond required by law, and the cost thereof is not, therefore, taxable as costs."

Court Rule No. 5, § 7, provides:

"Whenever a bond is required by law in any action or proceeding, the reasonable cost of procuring such bond shall be part of the taxable costs of the case, unless otherwise ordered by the court."

Under this rule the clerk taxed the item for premium on the bond given to stay proceedings. I think the rule beyond judicial power, and, therefore, void, and hold that the expense of the bond to stay proceedings, pending the appeal, cannot be taxed as costs.

With such item eliminated, the costs should stand as taxed by the clerk.