28 How. Pr. 184 | N.Y. Sup. Ct. | 1864
This cause having been appealed from the county court to the supreme court, and from the supreme court to the court of appeals, a question arose before the clerk on the taxation of the costs as to the term fees. The clerk taxed a term fee of ten dollars for the term of the supreme court at which the cause was heard or tried, and the same fee for the term of the court of appeals at which the cause was heard or tried in that court. Were these fees taxable under subdivision 1, of section 301 of the Code ? The subdivision is in these words : “ To either party, for every circuit or term not exceeding five circuits, and five special and five general terms at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the court, ten dollars.” When, then, may a cause be said to be tried ? A trial is said to be the examination of a cause civil or criminal, before a judge who has jurisdiction of it, according to the laws of the land.” (1 Just. 124; Jacob’s Law Dic. title “Trial.”) The definition by Webster is, “ in law the examination of a cause in controversy between parties, before a proper tribunal.” By the Code, section 252, “ a trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” It is a judicial examination of the issues between the parties. It is claimed that the issues between the parties are only such issues as are specified in sections 248, 249, 250; in other words, such issues as arise directly upon the pleadings. I think
There will be no costs on this motion, as the question is new.
Note.—Yrom this decision of Justice Campbell, an appeal was brought by plaintiff’s attorney to the general term of the sixth district, when the order was affirmed with ten dollars costs, at the November term, 1864.