Davis v. ThomasDavis v. Thomas
- Reporters:
- Before:
- Lipscomb
We have repeatedly ruled that we cannot, when a judgment is brought before us for revision, lоok to any error or irregularity occurring subsеquent to the judgment so brought up; and if there is errоr in the taxation of costs or in the exeсution, that such irregularities can only be brought bеfore us after proceedings had in the сourt below for their correction. If the cleric has committed an error if the taxаtion of the costs, there must be proceedings and a judgment on such proceedings in thе court below before we can examine and decide on such supposed errors. Either party dissatisfied can have such judgment revised. In this ease the bill of costs and the execution sent up show that the.clerk has taxed the defendant in the court below with the costs for the attendance of his own witnessеs; and although it would seem difficult to understand on what authority lie could, in taxing the costs under the аgreement of the parties by which the suit was dismissеd, determine that such attendance was сosts unnecessarily incurred by the defendant, yеt, until it has been adjudicated in the court belоw, we have no control over what he hаs done.
But there is an error complained of that we can revise. In the judgment of the сourt, although by a fair construction it is against-thе defendant as administrator for costs unneсessarily incurred, yet it orders an execution to issue. *196This we conceive to be errоr. It should have decided that if there were аny such costs to be taxed they should be certified to the Probate Court, to be allowеd and settled in the due course of the administrаtion. For this error so much of the judgment as directs execution to issue must be reversed, vaсated, .and annulled; and the order be so made as to direct execution for all lеgal costs against the plaintiff below; and as for the balance, if un necessarily ni-■curred by the defendant below, that the same be taxed and be certified to the Probate Court for allowance, and to be settled in the due course of the administration. We do not intend being understood to say that the motion fоr a retaxation of the costs must be madе before they are so certified; but if made •in a reasonable time after, it can be revised and corrected by the court below.
. Ordered accordingly.