72 Ala. 389 | Ala. | 1882
In the imposition of costs, the chancellor exercises a legal discretion, governed by precedent, and by general rules applicable to the varying circumstances of particular cases. But this discretion is exercised and exhausted, when a decree for the payment of costs is embodied in a final decree settling the equities of the case, and defining and declaring the rights of the parties. If from such a decree an appeal was taken, the decree as to costs would be open to modification or reversal, if in other respects there was found in it error, or that an alteration of it was just and equitable. In the execution of the decree, and as to matters subsequently arising, a further consideration of the cause may be, and is usually, necessary in the Court of Chancery ; but upon such consideration, the term of the court at which the decree was passed and entered having expired, it is not within the competency of the. court, upon mere motion, to vary or impugn in any material
The original decree very clearly and explicitly adjudged the costs against the building and loan association ; and though it may have been more equitable that the costs should have been apportioned between the parties, that was a consideration, it is presumed, upon which the judicial mind passed judgment. Courts can not reverse or annul their own judgments or decrees at a term subsequent to their rendition, because of errors of fact or law, upon the mere summary motion of parties supposing themselves to be aggrieved.—Ex parte Cresswell, 60 Ala. 378.
# A rule nisi will be granted, requiring the chancellor, on the first day of the next term of this court, to show cause why a peremptory mandamus should not issue in accordance with the prayer of the petition.
