Jose v. Hunter

63 Ind. App. 298 | Ind. Ct. App. | 1916

Hottel, J.

The appellees recovered a judgment against appellants in the court below, which judgment was reversed by this court on November 26, 1913, and costs in the trial court and this court were taxed to appellees, under §706 Burns 1914, §664 R. S. 1881. A petition for rehearing was denied by this court January 16, 1914, and a petition to transfer to the Supreme Court was by such court denied January 27, 1916. Appellees now move to retax certain costs taxed against them by the clerk of this court. As shown by this motion, the total costs taxed against appellees by such clerk aggregates $221.60, two items of which represent premiums paid by appellants for the appeal bond filed by them, viz., $20 for the original premium, and $40 for the accumulated premiums. Appellees, by their motion, seek to be relieved from the items of cost represented by such premiums. In support of their motion, appellees insist that no authority can be found in this State which authorizes the taxing of such items as costs against them, and also cite authority in other jurisdictions holding that such items are improper, in the absence of statutory provisions authorizing them to be taxed. Bick v. Reese (1889), 5 N. Y. Supp. 121; Somerville v. Wabash R. Co. (1896), 111 Mich. 51, 69 N. W. 90; Lee Injector, etc., Co. v. Pemberthy, etc., Co. (1901), 109 Fed. 964; Osborn v. Newberg, etc., Assn. (1900), 36 Ore. 444, 59 Pac. 711, 60 Pac. 994.

Appellants insist that appellees’ motion is not sufficient and that they have been guilty of such negligence and laches in its presentation that they should not now be permitted to obtain any benefit from it, and that, in any event, the taxing of said items as part of the costs of this ligitation is authorized by §5734 Burns 1914, Acts 1897 p. 192, 196.

1. As affecting the first question, we think the motion is sufficient to indicate to the court the particular items of costs which appellees seek to challenge. The case was not finally disposed of by the Supreme Court until January 26, 1916, and the delay since such final disposition does not show such laches as would warrant the court in refusing to relieve appellees from the payment of said items of costs if there is, in fact, no authority for taxing them therewith. As affecting this question the legislature, by §7 of an act approved March 6, 1897, supra, provided as follows: “Any receiver, assignee, guardian,. Committee, trustee, executor, administrator, or other fiduciary, required by law or the order of any court or judge to give a bond or obligation as such, may include, as a part of the lawful expense of executing his trust, such reasonable sum paid a company authorized under this act so to do, for becoming his surety on such bond or obligation, as may be allowed by the court in which he is required to account, or a judge thereof, not exceeding, however, one per centum per annum on the amount of such bond or obligation'; and in all actions or proceedings the party entitled to recover costs may include therein and recover such reasonable sum as may have been paid such company by such party for executing or guaranteeing any bond, undertaking or obligation therein.” The act, of which this section is a part, is entitled as follows: “An act relative to bonds and other obligations, with surety or' sureties, and' the acceptance as sureties thereon of companies qualified to act as such, and the release of such surety, and the safe depositing of assets for which such surety may be liable, and to the charging by fiduciaries and litigants of the expense of procuring sureties, and repealing all laws in conflict therewith, and declaring an emergency.”

In 1901, the legislature, by an act approved March 2, 1901, and entitled: “An act for the incorporation of bonding and surety companies, defining their powers, prescribing the duties of certain officers in connection therewith, authorizing the acceptance of bonds made by an incorporated company, providing penalties for the violation of this act, and declaring an emergency,” incorporated, as §25 thereof, §7, above quoted, of the act of 1897, changing the wording thereof so as to make it apply to corporations organized under the latter act, but in other respects, adopting substantially if not the same language of §7 of the former act. Acts 1901 p. 63, §5761 Burns 1914.

2. In the case of Indianapolis, etc., Traction Co. v. Brennan, (1909), 174 Ind. 1, 87 N. E. 215, 90 N. E. 65; Id. 68, 91 N. E. 503, the Supreme Court had before it the question now under consideration, and there held that the premium for the appeal bond, taxed in that case, was improperly taxed. In that case, however, it is stated that the appellant based its right to recover of the appellees such costs, upon the act of 1901, supra, and the court based its conclusions-on the fact that the portion of §7 italicized, supra, as incorporated in §25 of the act of 1901 was not within the scope of the title of such later act, and for this reason was invalid and void as violating Art. 4, §19, of the Constitution of the State. No reference was made in the opinion to §7 of the previous act of 1897, and we have examined the briefs on file in that case, and find that the court’s attention was in no way called or directed to such previous act, until after the filing of a petition for a rehearing on the motion to retax costs, when the appellant, in briefs then filed, called the attention of the court to the fact that the former act had escaped the attention of the appellant and the court, and asked the court to reconsider said motion. We must therefore conclude that said act of 1897 was not considered by the court in that case, and hence that said decision does not control the question as now presented, though the items of cost be of the same character. The title of the act of 1897 is more comprehensive than that of the later act, and seems to be sufficiently comprehensive to embrace the subject-matter of said section. In fact, the title of the former act seems to include the very matter (viz., litigants) which the opinion, supra, held to be essential to and omitted from the title of the act of 1901, and on account of which omission the court held said part of the section of the latter act invalid' and void.

1. There is no repealing clause in the act of 1901, and hence the former act could not be repealed by the latter except by implication. Repeals by implication are not favored (Baltimore, etc., R. Co. v. Sagan [1915], 183 Ind. 522, 109 N. E. 194, 196; Morrison v. State, ex rel. [1913], 181 Ind. 544, 552, 105 N. E. 113.; Blain v. Bailey [1865], 25 Ind. 165, 166) and, in any event, there is nothing in the later act that indicates any intention to repeal the former. On the contrary, §7 of the former act seems to have been incorporated in the latter as §25 thereof to make sure that corporations organized under the latter act should have the benefits extended by §7 of the former act to the companies mentioned in that act. Said sections of the two acts are in perfect harmony and, if both were valid, could be and should be construed together. Cahill v. State (1905), 36 Ind. App. 507, 512, 76 N. E. 182; State, ex rel. v. Graham (1914), 183 Ind. 53, 108 N. E. 111; Quality Clothes Shop v. Keeney (1914), 57 Ind. App. 500, 503, 106 N. E. 541; Ensley v. State, ex rel. (1909), 172 Ind. 198, 203, 88 N. E. 62.

The rules governing the construction of statutes as announced in these cases compel the conclusion that §7 of the act of 1897 (Acts 1897 pp. 192, 196, §5734 Burns 1914) is in full force and effect.

3. It is, however, insisted by appellees that even though such section be in force, the last provision thereof has application to only such litigants as fall within the class before enumerated, viz., receivers, assignees, guardians, etc. It seems to us that no such intention on the part of the legislature is indicated, either by the language of the enacting clause, or the language of the act. The langauge of each indicates that all litigants required to give bond were intended to be included within the provisions in question.

The reasonableness of the amount taxed for said premiums is not questioned and, for the reasons indicated, we are of the opinion that such premiums were properly taxed as a part of the costs incurred by appellants in their appeal. The motion to retax costs is therefore overruled.

Note.—For opinion on merits, see 60 Ind. App. 569.