153 A. 853 | Conn. | 1931
On January 26th, 1926, counsel retained and employed by the defendant Foote for that purpose, prepared an application for a writ of mandamus against the present plaintiffs, to compel them, as members of the board of assessors of the town of Branford, to include in the assessment list certain property at its true and actual value, and presented the same to the State's Attorney for New Haven County, who approved and signed the application. The action was then proceeded with and finally resulted in judgment for the then plaintiff, which was affirmed by this court. State v. Erickson,
The legal services in connection with the prosecution of the case of State v. Erickson were rendered by attorneys employed by Foote, and the entire expense *664 of such prosecution has been borne by him. The expenses so paid exceed in amount the costs taxed as above stated.
The reservation presents the questions: (D) Is the defendant Foote entitled to these costs? (E) If not, is he entitled to a sufficient amount to cover his expenses, or (F) to cover the items specifically taxed? The remaining questions (A, B, C, G and H) relate to the power of the board of finance and control to waive costs and the constitutionality of its action in voting to do so.
The nature of the action of State v. Erickson and the situation of Foote with reference thereto have been definitely settled in former appeals in that case andState ex rel. Foote v. Bartholomew,
"Writs of mandamus have a twofold aspect. In one, the purpose is to enforce a private duty owed to the relator and the action, while nominally in the name of the State, is really a proceeding by the relator individually against another individual. State ex rel.Elliott v. Lake Torpedo Boat Co. [
The vital question upon this reservation is whether Foote, on his own account and behalf as an individual, is entitled to enforce the judgments which were rendered in favor of the State. The fact that he was permitted to bear the burden of the action afforded no defense to the cause itself. State ex rel. Foote v. Bartholomew, *666 supra, page 251 of 108 Conn.; Bridgeport
v. Equitable Title Mortgage Co.,
A judgment for costs is a judgment in favor of the party, and not of his attorney, and the money represented by the costs is the property of the party. The costs allowed in an action belong to the party in whose favor they are taxed, and not to his attorney. Dwyer
v. Ells,
Foote was under no obligation to provide counsel or to pay other expenses connected with the prosecution of the action by the State; in that respect his position is that of a stranger and volunteer and, as such, not entitled to the benefits of subrogation. Sauter v. Mahan,
We discover no tenable ground upon which this defendant may claim such an interest in the costs in question or in the judgments therefor, in favor of the State, as to authorize or justify him in enforcing executions thereon. We therefore answer questions D, E, and F in the negative. For the same reasons the defendant is not entitled, in this action, to attack the action of the board of finance and control; consequently we do not determine the remaining questions.
No costs will be taxed in this court to either party.
In this opinion the other judges concurred.