First National Bank v. Follett

46 Colo. 452 | Colo. | 1909

Mr. Justice Gabbebt

delivered the opinion of the court:

The statute provides that a sheriff, in addition to the fees prescribed, shall be allowed his actual expenses incurred in executing a writ of attachment, and also for custodian fees not exceeding $2.50 per day of twelve hours. — §§ 1898-1898a, 3 Mills’ Stats., Revised Supplement. Counsel for appellant contend that.there must be a formal order of court taxing items as costs which are not specifically provided for by the statute, and claims it appears from the record that the items to which he objects, the amount of which is not specifically fixed by statute, were never allowed by the court, or ordered taxed as costs.

The record shows .that the items of which the appellant complains were allowed by the court. The purpose of the motion filed by the bank to retax and disallow certain items mentioned in the report of Sheriff Burchinell, was to determine whether or not they were correct in amount, and legally chargeable as costs. The return of ex-Sheriff Webb was then on file, was considered in evidence at the hearing, embraced items to which objections were filed by reason of the objection to the item in the account and which he had paid for the purpose of liquidating the balance due Webb, and necessarily the correctness of this item could not be ascertained except by going over the Webb accounts and ascertaining what balance, according to the return he made, was due him. After the elimination of some minor items, the report of Sheriff Burchinell was approved, by which it was determined that the items of expenditure and charges were correct except as to those not allowed. The amount of the allowance embraces all items with respect to sheriff’s fees and charges, of which the plaintiff complains. The order of allowance does not state that the items were to be taxed as .costs, but the hearing was for the express purpose of determining what items in the sheriff’s report should be allowed, and the effect was to tax those allowed as costs in the case. The other items of which the bank complains were ordered to be paid by the clerk out of funds, in his hands which had been turned over to- him from the sale of the attached property. Evidently such orders could only have' been made upon the theory that they were expenses or costs incurred in the case.

Such was the status of the judgment in so- far as costs were involved at the time the case was pending in the court of appeals. If plaintiff was dissatisfied with the orders respecting costs, it could have had them brought to the attention of the court of appeals before it pronounced judgment under the provisions of secs. 78 and 398 of the Civil Code, and the correctness of the orders determined.—Schmidt v. Dryer, 21 Colo. 100; Joralmon v. McPhee, 29 Colo. 135.

Having failed to do so, it not only waived its right to be thereafter heard on that question, but the judgment of the court of appeals, affirming the judgment of the trial court, affirmed all matters of record in the case in that tribunal, as well as in the court below, and hence, in the circumstances, affirmed the orders fixing costs.—Staples v. Barclay, 30 Colo. 428; Smith v. Shafer, 50 Md. 132; Whitney v. Teichfuss, 11 Colo. 555. The bank was, therefore, precluded from having the orders allowing costs reviewed either in the court below or here.

It is urged on behalf of the bank that the motion of the intervenor for an order on the clerk to issue a fee-bill was not the proper remedy, and that the judgment is not responsive to the motion. Judicial proceedings subsequent to final judgment can only be reviewed in connection with-a review of the latter.—Green v. Thatcher, 31 Colo. 363.

In as much as the bank was not entitled to have the order for costs'reviewed, it follows, as of course, that the errors of which it complains are not before us for consideration.

The appeal is dismissed. Dismissed.

Chief Justice Steele and Mr. Justice Hill concur.