15 Mont. 162 | Mont. | 1895
— It is conceded by counsel for the plaintiff bank that the defendant Brown had a legal right to intervene for the purpose of trying the issue between the plaintiff bank and the defendant Boyce, as to the amount due upon the note at the date of the commencement of the action by the bank against Boyce. But it will be observed by the statement of the facts, that upon the trial of the case the intervenor expressly admitted that the amount alleged to be due in the complaint of plaintiff" bank, less a payment of $1,927.60, allowed as a credit by the bank, was a just debt, and expressly declined to offer proof to sustain the averments of his complaint denying such indebtedness, or to contradict the testimony of the officer of the plaintiff bank. This issue of fact being therefore eliminated from the case, it is necessary to determine whether or not the other facts set forth in the intervenor’s complaint are sufficient to enable him to intervene in the action pending between the plaintiff bank and the defendant Boyce. We think not. The original suit of the plaintiff bank against
But upon another ground we think that the intervenor is precluded from f obtaining relief. He does not, by his pleading, positively affirm the assignment of Boyce to Porter, because to do so would compel the court to decide that he could only claim under its provisions. The result of this would be that his attachment would fall. Nor does he repudiate the
The allegation of collusion, conspiracy, and fraud between the bank, Boyce, and the sheriff, is a conclusion not sustained by averments in the pleading. The mere fact that the assignee was under the direction and in the employ of the bank is, by itself, not a fraud; nor is there any wrong charged against the sheriff, other than the several seizures and surrenders alleged to be void and irregular; nor are there any facts, other than the acts herein discussed, from which conspiracy or collusion can be legitimately inferred. We think the court properly sustained the objection of the plaintiff bank to the testimony offered, and that the intervenor was justly denied relief.
After judgment, which was entered July 23, 1891, appellants, by motions made to the court, asked that all cost bills, and more particularly the cost bill filed July 21st by the sheriff, be stricken from the record, for the reason that no cost bill was filed by plaintiff bank, or by any other person, within the time provided by law. A motion was also made to retax costs, on the ground that the plaintiff did not deliver to the clerk of the court, within two days after the decision of the court, or at any other time, any memorandum of its costs and necessary
Appellants next contend that plaintiff was obliged to file a memorandum of its costs and sheriff fees as required by section 507 of the Code of Civil Procedure, which is as follows: “The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court, within two days after the verdict or decision of the court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.”
Respondent argues that it was unnecessary to file the memorandum, under section 508 of the Code of Civil Procedure: “But such memorandum need not include the legal fees or costs of any officer of the court, or any witness fees when an affidavit of such witness’ attendance is required by law to be made.”
Construing these two statutes, it seems clear that the legal
The remaining point is whether a sheriff’s expenditures, such as rent bills, keepers’ fees, gas bills, water rents, fuel bills, and such other disbursements as are often necessarily made in levying attachment writs, are the officers’ legal costs which need not be included in the party’s verified memorandum, or are costs or disbursements which should be so included. The general practice of our courts has been for sheriffs to tax, as part of their costs, their disbursements in levying attachments upon .personal property and safely keeping the same. It would be well nigh impossible oftentimes for an attaching creditor to keep informed of the expenditures of the sheriff, and to know whether his disbursements have been necessarily made. All these duties properly belong to the sheriff, and in their performance his necessary disbursements become legally taxable costs for which he is entitled to be reimbursed. This view is reasonable and based on a fair interpretation of the statute under consideration.
There may be various costs and necessary disbursements frequently incurred by parties in suits of which no record would appear, unless they were included in the verified memorandum required by section 507; and it is such costs which can be recovered by filing the sworn statement contemplated by the statute.
It is proper to note that sections 508 and 509 of the code are taken from the act of February 16, 1877, which was passed after the decision of the supreme court in the case of Orr v. Haskell, 2 Mont. 350.
The judgment is affirmed.
Affirmed.