40 How. Pr. 40 | N.Y. Sup. Ct. | 1870
We must accept as the law of this case, that the general term correctly dismissed the case as being there without authority; or, in other words, that court had no jurisdiction to give judgment between the parties, and they gave none. The only judicial act that court could perform, in the case, was to dismiss it. Costs now, in all cases, are the creation of the statute, and. they are given or withheld as the statutes direct. Of course if the court had no jurisdiction to render a judgment, and having omitted to award costs—even the costs of a motion—it follows, that if any costs of that proceeding are recoverable, it must be by reason of some positive regulation of the statute. (King v. Poole, 36 Barb. 247.) But it must be conceded that this, rule applies only to that class of cases where the.want of jurisdiction appears upon the face of the proceedings, as it did in this case. There is a class of cases, however, in which the proceedings are in the form prescribed by law; where the court below had no jurisdiction of the subject matter; and where the statute provides the form of appeal to this court, and even to the Court of Appeals, to have it declared that the court below had no jurisdiction in which the courts do possess the power to award judgment, and costs. Such was the case of Kundolf v. Thalheimer, (12 N. Y. 593,) where the. county court assumed civil jurisdiction under the consti
This point of the case is simply stated, thus: The county court, without legal authority, ordered the case while depending in it, and never having been legally removed from it, to be heard at general term of the Supreme Court. When it came there, the general term said it was improperly there, and refused to hear it, and entered no judgment upon it for costs, or otherwise, but entered a mere order dismissing it from that court. Then, the question is, can costs be taxed against' the defendant, the same as if the action had been legally pending in that court? By what statute, then, are
The fee bill provided by the Code is confined to'proceedings conducted according to its provisions; and for no other. The rule of the special term makes a new fee bill not known to the Code—not known to legal and legitimate proceedings in an action under it—a rule very convenient for bunglers in practice to secure compensation for services in all cases of mistakes, or even of designed wrong. Suppose the county court of Cortland county had sent the case directly to the Court of Appeals, instead of the Supreme Court; it had equal power to do so. The compensation in the Court of Appeals is still better for the prevailing party. The order of the special term would have been equally sound had it allowmd the costs of the Court of Appeals in the supposed ease. Equally so had the county court ordered the case to an arbitration. The
The defendant has raised another point on the appeal— that the judgment in the county court, for $75, is more favorable to him by an amount exceeding $10, than the verdict of $80 in the justice’s court; that is, the action being one upon contract, casting interest upon the $80 judgment, there is more than $10 in favor of the last judgment. I do not think the legislature, in the enactment of the 371st section of the Code, in referring to the judgment to be appealed from, intended to refer to it as a judgment to be afterwards increased by interest, but to the judgment as it was at the time the party appealed' from it. As it was then a judgment of $80, the subsequent judgment of $75 was not $10 more favorable. Although for some purposes interest is the incident and becomes a part of a judgment, for other purposes it does not. By a provision of the Revised Statutes, (2 R. S. 364, § 9,) interest on judgments, like costs, is directed to be indorsed on the execution from the date of recovering the same. I think the judgment, independent of interest, is intended as the test of difference between judgments. But the rule, stare deeieis, is invoked as controlling, in the sixth judicial district, where this case originated. I feel
The result is, that the order of the special term should be modified by striking out of the plaintiff’s bill of costs $70, charged for the costs of the argument in general term of the Supreme Court, when the case was irregularly there, with $10 costs of this motion and $10 costs at special term, to the defendant on this appeal.
Miller, P. J., and Potter and Parker, Justices.]