Clark v. Barber, 21 App. D.C. 274

Clark v. Barber

21 App. D.C. 274 | D.C. Cir. | 1903

Mr. Justice Shepard

delivered the opinion of the Court:

1. The transcript shows that the judgment was pronounced in open court on May 3,1894, but was not signed and entered of record until June 18, 1894.

*280Wien offered in evidence, tie defendant objected on tie ground of variance in that it was declared upon as rendered May 3, when in fact it lad been rendered on June 18, 1894. Tie exception to tie admission of tie proof contains the following recital: “ Tie presiding justice upon consideration tlat tie defendant lad theretofore, at a former trial of tlis cause lad February 26, 1900, objected tlat there was a variance between the said transcript and the plaintiff’s amended declaration filed in tlis cause on tie 18tl day of March, 1897, which amended declaration declared on a decree of tie High Court of Justice — Common Pleas Division, signed and entered on tie 18th day of June, 1894, whereas tie final decree was signed on tie 3d day of May, 1894, which objection of the said defendant was then sustained, and tie plaintiff amended his declaration to conform to tie objection of tie defendant and tie ruling of the court, overruled said objection and allowed tie transcript to be read.”

We are of tie opinion tlat tie court was right in overruling tie objection for tie reasons given. Having induced the court on a former trial to rule tlat tie judgment should lave been pleaded as of May 3, 1894, instead of June 18, and tie plaintiff laving conformed to tlat ruling by amending bis declaration to meet tie objection, tie defendant ought not now to be heard to complain of an error, if in fact it be one, tlat was tie result of lis own suggestion and persuasion.

2. Tie second assignment of error is founded on tie objection that tie judgment sued upon was not final. We are of opinion tlat it lacked no substantial element of finality. Every essential question at issue was effectually disposed of, including tie award of costs. Tlat these costs lad to be taxed by tie clerk or master, according to tie terms of tie decree, is immaterial. Tie taxation of costs is incidental to the decree and not an essential part of it. Adriance v. Heiskell, 8 App. D. C. 240, 245. As was said in tlat case: “ Indeed it not infrequently happens tlat judgment is rendered for some specific sum found to be due and for costs thereafter to be taxed by tie clerk, such taxation of costs *281being merely a clerical matter to be performed by the clerk rather than the court.”

Moreover, the transcript, the exemplification of which bears the final date of March 2,1897, shows that the costs adjudged to the plaintiff had been taxed and certified by the taxing officer on November 26, 1895, and then entered on the judgment record.

3. It is to be presumed that the taxing officer obeyed the explicit directions contained in the decree and certified the balance of costs due by the defendant, after making the required allowances for him and setting them off against those adjudged to the plaintiff.

It was not error, therefore, as has been contended under the last assignment, to refuse to permit the defendant as a witness to testify to the amount of costs due him and show that the same had not been properly entered to his credit in the certificate of taxation.

The record speaks for itself and cannot be contradicted, or amended in that way.

Having found no error in the proceedings on the trial, the judgment will be affirmed, with costs. It is so ordered.

'Affirmed.