31 Haw. 242 | Haw. | 1930
Lead Opinion
From a decree entered by the circuit judge on October 16, 1929, the respondent, the Waialua Agricultural Company, Limited, seeks to take an appeal to this court. It filed its written appeal and notice of appeal on October 19, within the time limit of five days prescribed by law, and on the same day and within the time limit of ten days prescribed by law, it paid to the clerk of the circuit court the sum of $171.20 as costs. The petitioner moves in this court to dismiss the appeal on the ground that the respondent "did not, as expressly required by the provisions of the Revised Laws of Hawaii 1925, pay the costs theretofore accrued and duly taxed in said cause, and that the sum of $810.45 theretofore accrued and duly taxed by order of said court was not paid within the time provided by law or at all; that the payment of said costs was in no way waived by petitioner herein." The costs accrued, as entered in the docket of the clerk of the circuit court at the date of the order of the circuit judge taxing costs, were in the sum of $160.70 and at the date of the payment by the appellant of the costs amounted to $171.20, the difference of $10.50 having accrued after the presentation of the bill of costs and before the payment on October 19. On October 15, 1929, the circuit judge allowed total costs in the sum of $2256. This ruling was upon a bill of costs presented by the petitioner and containing the following items: fees of sixty-nine witnesses, $138; mileage of witnesses, $195.44; "paid London commissioner as per affidavit attached, $77.92; paid Oxford commissioner as per affidavit attached, $504.88; paid notary at Port Townsend, Washington, as per affidavit *244 attached, $5.00; paid notary at Cincinnati, Ohio, as per affidavit attached, $5.85; paid William S. Chillingworth as per affidavit attached, $150.00; paid D.K. Sherwood as per affidavit attached, $5.80; 3 witnesses subpoenaed on accounting, $6.00; to accrued costs of court as per clerk's docket, $160.70; 29 witnesses in England called and sworn, $58.00; to costs of transcript as per stipulation, $1,285.38; to drawing petition, $3.00; to two copies thereof, $3.00; to attendance on argument demurrer, $3.00; to attendance on trial, $3.00; to drawing bill of costs, copy and service, $1.00; to attendance on taxation of costs, $1.00," — a total of $2606.97.
The circuit judge allowed $91 in lieu of the first two items of $138 and $195.44, respectively, disallowed the item of $150 paid to Chillingworth and the item of $58 for "29 witnesses in England" and allowed all the other items as claimed in the bill, remarking at the time that the item of $1285.38 for costs of transcript had already been paid by the respondent and was "included for purposes of completeness."
The statute under which this appeal was taken (R.L. 1925, Sec. 2509) reads as follows: "Appeals shall be allowed from all decisions, judgments, orders or decrees of circuit judges in chambers, to the supreme court, except in cases in which the appellant is entitled to appeal to a jury, whenever the party appealing shall file notice of his appeal within five days, and shall pay the costs accrued, and deposit a sufficient bond in the sum of fifty dollars, conditioned for the payment of the costs further to accrue in case he is defeated in the appellate court, or money to the same amount, within ten days after the filing of the decision, judgment, order or decree appealed from." While, as above appears, the ground of the motion to dismiss as originally presented was that items of taxed costs aggregating $810.45 had not been paid by the appellant, *245 the ground upon which reliance was placed by the appellee in argument was that the items of $77.92 and $504.88, or an aggregate of $582.80, paid to the "London commissioner" and the "Oxford commissioner" for their services in taking testimony, had not been paid by the appellant in connection with the perfecting of the appeal. The precise question before us is, therefore, whether under the circumstances of this case the two sums aggregating $582.80, which were paid to the commissioners in England for their fees and expenses in taking testimony, are "costs accrued" within the meaning of section 2509.
Speaking generally, costs are the taxable expenses of litigation. But the word "costs" is susceptible of different meanings. It is used in different senses. Giving it its broadest signification it may include all of the items which are taxed in favor of a successful party, such as the attorneys' fees permitted by statute, fees and mileage of witnesses, stenographers' fees in the making of transcripts, statutory fees for filing papers, for issuing process, for serving witnesses, for judicial hearings and orders and for other judicial charges, which statutory fees go to the government as partial compensation for the maintenance of the courts, and other expenses incurred by the successful party and deemed reasonable by the taxing officer. On the other hand it may be so used as not to include some of the items taxed in a bill of costs and so as to include the statutory fees just referred to and other items sometimes termed costs of court. It may also be used as including only the statutory costs which are entered customarily in the docket of the clerk of court and which when collected belong to the government, whether the Territory or the city and county.
That the word "costs" in section 2509 is not used as including all items taxable as costs has been definitely decided by this court in Lufkin v. Grand Hotel Co.,
In the remaining language of section 2509 there are only two indications, both very slight, as to the sense in which the word "costs" is there used, but both of those indications are in favor of the view that the legislature had in mind only those costs (referred to in the argument in this court as "clerk's costs") which the statute expressly authorizes to be charged by the courts for the filing *247 of papers, for the holding of hearings, etc., and which are to become, when collected, government realizations. One of them is that the bond or cash required to be deposited, "conditioned for the payment of the costs further to accrue in case he" (the appellant) "is defeated in the appellate court," is in the sum of $50 only. While ordinarily that sum is sufficient for the "clerk's costs" as above defined, still, in view of the power conferred upon this court by section 2511 to hear newly discovered evidence in cases appealed from circuit judges in chambers, that sum would not be sufficient to meet the fees and expenses of commissioners appointed to take evidence or to meet other larger expenditures properly taxable as costs in favor of the successful party. The other is the provision that "appeals may be allowed upon like terms as to filing bond and payment of costs, * * * from decrees overruling demurrers or from interlocutory judgments, orders or decrees whenever the circuit judge may think the same advisable for the more speedy termination of litigation." Appeals from interlocutory judgments, orders or decrees may well take place, as for example in partition suits and in suits for the foreclosure of liens, after a somewhat lengthy trial in which considerable expenditures for fees of commissioners, masters and other judicial officers and for other purposes have been incurred, but as far as I know in this jurisdiction it has not been the practice in such cases to tax or to ask for the taxation of bills of costs prior to the taking or perfecting of such interlocutory appeals. Costs other than clerk's costs accrue, of course, at the time of their expenditure or at latest when it is known who the successful party is. They may be taxed considerably later but they always accrue before they are taxed and sometimes long before. The statute provides that these interlocutory appeals shall be "upon like terms" as to the payment of costs as in appeals *248 from final decrees, orders or judgments. I cannot think that in interlocutory appeals the legislature intended to make compulsory the taxation of costs before final decree and to make compulsory the payment of costs as taxed, other than clerk's costs, in order to perfect an interlocutory appeal. The tendency of both of these considerations from the language of the statute is, although slight, in favor of the view that only clerk's costs were referred to in the requirement of payment of "costs accrued" in order to perfect an appeal. That, too, is the more natural and probable meaning intended by the legislature to be attached to the expression under consideration. The provision, it would seem, was intended for the protection of the government in securing for itself payment of the costs prescribed, charges which the courts were authorized to make in partial compensation for the services rendered by the government to litigants in the settlement of their disputes. It would be, I think, a more strained construction to regard the provision as a means of enforcing early payment to the successful litigant of all costs other than clerk's costs which had been awarded to him. For the collection of such additional costs by the successful party from an unsuccessful party the aid of the process of the courts is always available and it is not known until the final disposition of the cause in the appellate court which of the two parties will recover the additional costs. Sometimes it is the appellee, but sometimes, also, it is the appellant. Again, the contrary view, that section 2509 contemplates the prepayment of all taxable costs or even of some costs (like commissioners' fees) other than clerk's costs, would make appeals extremely burdensome in some cases and greatly irregular in burdens as between different cases.
The contention is advanced that fees paid to commissioners appointed to take testimony are costs of court and *249
that under the ruling of this court in Cardozo v. Sociedade,
After the present motion had been argued and submitted the court requested counsel to produce such evidence as might be found available tending to show what the practice has been in the past under this statute relating to appeals. In response to this request affidavits were filed which had been made by clerks of four out of our five circuit courts and by a number of attorneys. Later cross-examination was had of the statements made by one of the clerks of the first circuit. It is apparent from the evidence that the practice has not been uniform; and yet there is in it, as I think, much to emphasize the correctness of the construction which I am placing upon section 2509. The four clerks of court all testified that in receiving payments in connection with the perfecting of appeals under section 2509 they have not concerned themselves with any costs other than those which at the argument and in this opinion are referred to as the "clerk's costs." In the first circuit, out of slightly over two hundred cases reported by the clerk in his affidavit, it is agreed that in about one hundred and sixty of them there had been no taxation of costs and that therefore only the "clerk's costs" had been paid. Of the remainder (a total of from forty-two to forty-five), I find that in more than thirty cases only the clerk's costs were paid and the additional costs which were taxed were not paid. In the others either both classes of costs were paid or, in a very few instances, the matter is doubtful. In each of the instances in which clerk's costs only were paid it is to be noted that that procedure evidenced not merely the construction placed upon the statute by the attorney who paid, but also the construction placed thereon by the attorney for the appellee, for it does not appear that in any of those instances a motion to dismiss for failure to pay sufficient *252 costs was made. So, also, in all instances in which clerk's costs only were paid that fact is indicative of the view taken by the clerk who received the costs and who represented the government in the transaction, the government being the payee of the costs so paid. I consider that the construction placed by the clerks of court as shown by their acts and omissions is of even greater weight than the construction placed by the paying attorneys. The one hundred and sixty cases in which no additional costs had been taxed are claimed by counsel for the appellee in the case at bar to be of no significance. I think that they do have significance. It may be presumed that in most of them some additional costs were taxable and that in some of them court costs other than "clerk's costs" were taxable. If the statute required or contemplated the payment on appeal of all costs taxed or of all "costs of court," attorneys for appellees may well have been expected, in many if not in all cases, to have secured taxation of costs at the first opportunity in order to make the appeal more burdensome to the appellant and in order, also, to secure an earlier and more certain payment of those additional costs. While the rule of long continued uniform contemporaneous construction cannot be here invoked, nevertheless I feel encouraged by the evidence adduced in thinking that the construction which I place upon the statute is the correct one.
In my opinion the two items aggregating $582.80 are not in this instance costs of court and are not "costs accrued" within the meaning of section 2509 and need not have been paid in order to perfect the appeal; and the motion to dismiss the appeal should be denied.
Concurrence Opinion
I, too, think the motion to dismiss the appeal should be denied. I am brought to this conclusion by my agreement with the opinion of the chief justice that "accrued costs," as used in the appeal statute, means "clerk's costs," which upon collection become revenues of the government, as distinguished from "costs of court," such as costs of taking depositions and other costs that are made necessary by the litigation and that follow the judgment. What costs are required by statute to be paid on appeal has too long been a matter of conjecture in this jurisdiction. I think it is time the question were settled by judicial ruling and to my mind it does no violence to the language of the statute to say that it was the intention of the legislature to limit such costs to those that appear on the clerk's docket. I am the more satisfied with this conclusion because I believe it to be just. It minimizes the burden of appeals, which is desirable, and thus places the appealing litigant of small means more nearly on an equality with the appealing litigant of large means.
Dissenting Opinion
I respectfully dissent. The provision of section 2509, R.L. 1925, that "appeals shall be allowed * * * whenever the party appealing * * * shall pay the costs accrued," etc., does not expressly place any limitation upon the costs thus to be paid except only the one that such costs shall have "accrued" and it does not expressly confine such costs to any one or more classifications. In Lufkin v. Grand Hotel Co.,
Chapter 147, R.L. 1925, entitled "Costs," is arranged in divisions under the four following subtitles, namely: "District Courts," "Circuit and Supreme Courts," "Probate Courts" and "Miscellaneous." Except for these subtitles and except for the heading of section 2545, namely, "Remission of Court Costs," the statutes contain no classification of and no express reference to "court costs." The term is again found, and again without definition, in the rules of the supreme court and in the rules of the circuit courts. Under the subtitle "Circuit and Supreme Courts," in R.L. 1925, chapter 147 on "Costs" above referred to, are two sections only, namely, sections 2542 and 2543. Section 2542 contains four subdivisions headed respectively "Schedule," "Attorneys' Fees," "High Sheriff's and Sheriff's Fees," and "Judge's Fees." Section 2543 provides that "section 2542 shall apply to the justices of the supreme court and the circuit judges when sitting at chambers as well as to the supreme and circuit courts, except as otherwise provided."
The majority opinions hold that all of the items scheduled in section 2542 are not "court costs." I do not dissent from that view. But I am not of the opinion that the remaining items of said schedules constitute a complete list of all costs which may be properly classified as "court costs." There is authority to the contrary. Section 2575, R.L. 1925, provides that "the costs of every application for any rule or order to be made for the examination of witnesses under any commission by virtue of this chapter, and of the rule or order and proceedings thereupon, shall be costs in the cause unless otherwise *255 directed, either by the judge making such rule or order, or by the judge before whom the trial or inquiry of the cause may be had, or by the court wherein the action shall be depending."
In Waikulani v. Carter,
The majority apparently differentiates the Waikulani andCardozo cases from the case at bar because of the fact that in the earlier cases the trial court had directly ordered that the fees of the commissioner to take testimony be made costs of court, while in the present case no *257 such order was made. In view of the fact that elsewhere in the opinions referred to the question as to whether or not the clerk is accountable to the government for the costs so chargeable is made the true test as to what are or what are not costs accrued, this distinction cannot be controlling. Nevertheless, taking up the distinction above referred to, it appears to me not to affect the rights of the parties in view of the provisions of section 2575 that the costs of the examination of witnesses under commission shall be costs in the cause unless otherwisedirected. Under this provision omission to direct otherwise would make the commissioner's fees costs in the cause. I cannot concur in the view that the record in this case shows that the trial judge otherwise directed. The facts (a) that the commissioner's fees were paid in advance by the petitioner; (b) that they were sworn to as necessary and reasonable and that the testimony obtained through witnesses appearing before the commissioner was necessary and relevant; and (c) that they were referred to in the affidavit of counsel for petitioner as "disbursements," are insufficient in my opinion to change their character as costs. Costs which are found in the schedule of items for which the clerk is accountable to the government are deposited in advance by the petitioner and if the petitioner were to swear that said amounts were so disbursed, I cannot think that that fact would change the character of any part of such deposits as costs accrued nor relieve the respondent, if he were the appellant, of the duty to prepay them as a condition precedent to allowance of his appeal. Nor can I regard the allowance of the items of the amounts paid the commissioners in plaintiff's bill of costs or the reference therein to "accrued costs of court as per clerk's docket" as a direction otherwise within the purview of section 2575. *258
Assuming that section 2509 is ambiguous in its meaning and that it is therefore open to proof of practical construction, I do not agree that the proof offered showed construction by a practice sufficiently uniform to support the contentions of either party in this respect.
I also fail to find manifested any legislative intent as to what costs specifically shall or shall not be paid upon appeal in enactments in pari materia. It is true that section 2509 provides that interlocutory appeals may be allowed upon like terms as to payment of costs, etc., but what are or are not like terms can only be ascertained from the earlier provisions of section 2509 as to final appeals. A similar provision is found with reference to interlocutory exceptions in section 2515. But neither section 2515 nor any other section provides for the prepayment of costs upon final exceptions (see Territory v.Kauhane,
The commissioner's fees taxed herein having not been paid by the appellant and the same being "costs accrued" in the view hereinabove expressed, in my opinion the motion to dismiss the appeal should have been granted. *259