| Ill. | Feb 19, 1909
delivered the opinion of the court:
The proof shows that the United States Circuit Court of Appeals had jurisdiction of the parties and had jurisdiction to render its decree counted upon in this suit. That decree is in words and figures following:
“This cause came on to be heard on the transcript of record from the Circuit Court of the United States for the Northern District of California and was argued by counsel, on consideration whereof it is now here ordered, adjudged and decreed by this court that the decree of the said circuit court in this cause be and the same is hereby reversed, with costs, and the cause is remanded to said circuit court with instructions to dismiss the bill.”
It is also shown by competent evidence that the costs referred to in this decree were lawfully taxed at the sum of $1306.10, but the decree, when offered in evidence, was objected to on the ground that it did not appear therefrom that the costs were adjudged against Prescott, there appellee, and in favor of the Santa Clara Valley Mill and Lumber Company, there the appellant.
In Martin v. Barnhardt, 39 Ill. 9" date_filed="1865-11-15" court="Ill." case_name="Martin v. Barnhardt">39 Ill. 9, the record entry relied upon recited the overruling of the motion for a new trial, and continued: “And judgment entered upon the verdict for $3000 and costs, to which the defendant excepts.” It was held that this was not a judgment, because, among other things, it failed to state in whose favor or against whom it was rendered. To the same effect is the case of Metzger v. Morley, 184 Ill. 81" date_filed="1900-02-19" court="Ill." case_name="Metzger v. Morley">184 Ill. 81. It follows that the decree above set out, standing alone, was not admissible in evidence for the purpose of showing a decree for costs in favor of the company and against Prescott.
Over the objection of appellant, appellee introduced in evidence rule 31 of the United States Circuit Court of Appeals for the ninth circuit, which provides, among other things, “in cases of reversal of any judgment or decrée of this court, costs shall be allowed to the plaintiff in error or appellant, including the cost of the transcript from the court below, unless otherwise ordered by the court,” and it is contended that this rule shows conclusively that the decree for costs was against the appellant, as it does not appear that it was otherwise ordered by the Circuit Court of Appeals. The rule undoubtedly shows that except it was otherwise ordered Prescott would rightfully be adjudged by the Circuit Court of Appeals to pay the costs here in controversy. But the difficulty is that this is an action upon the decree and the plea is nul tiel record. Such being the case, the record offered must stand or fall by itself. It can not be aided by the rule introduced in its support. The existence of the decree for costs must be determined by an inspection of the record alone. Clark v. Melton, 19 S. C. 498; Treat v. Maxwell, 82 Me. 76" date_filed="1889-07-19" court="Me." case_name="Treat v. Maxwell">82 Me. 76; Noyes v. Newmarch, 1 Allen, 51.
It is then urged that the expressions used in the decree above set out show, by implication, that the unsuccessful party was adjudged to pay the.costs. This might be true if in. every proceeding in chancery the costs of the appellate tribunal, in the event of reversal, were necessarily adjudged against the party cast; but this is not the case in every jurisdiction and in every instance.
Appellee also sued for the amount of a decree for costs rendered by the United States Circuit Court for the Northern District of California, following the decree of reversal above referred to.. The amount of that decree so rendered by the Circuit Court for the Northern District of California was $145.45, and recovery for that amount, with interest thereon at seven percentum per annum from the date of that decree, was had in this suit. The only objection made to plaintiff’s recovery as to this item which is entitled to consideration is with reference to the interest. Under our law it is clear that interest was properly allowed upon the decree in the absence of evidence showing that the law in the northern district of California was such that it would not draw interest. No such evidence was introduced. A statute of the State of California was admitted in evidence by virtue of which it is claimed that the rate at which the decree draws interest is seven percentum. Appellant now contends that the California statute was improperly admitted in evidence because it was not pleaded, and that under these circumstances no more interest could, in any event, be allowed than that given by our own statute. This point seems not to have been made in the superior court. In fact, it is apparent from a proposition of law submitted by appellant in that court that he there tried the case on the theory that if appellee was entitled to recover interest the rate at which it was entitled to recover was seven percentum. The question as to the rate of interest will therefore not be considered by us.
The judgment of the Appellate Court and the judgment of the superior court will be reversed and the cause will be remanded to the latter court for further proceedings not inconsistent with this opinion.
Reversed and remanded.