Scott v. Alexander

| S.C. | Jun 23, 1887

The opinion of the court was delivered by

Mr. Justice McIver.

This is the second appeal in this case upon the same matter of costs, and for a full statement of the facts, which it is unnecessary to repeat here, reference must be had to the case as reported in 23 S. C., 120.

In pursuance of the decree then rendered, Judge Kershaw, in a carefully drawn order, directed the clerk to adjust the costs and disbursements in accordance with the directions of this court, and the case came before Judge Fraser upon exceptions to the adjustment made by the clerk. He held that the reports of the referees and master would have been necessary for the determination of the original issues, even if no new issues had been raised by the amendments to- the complaint, and that though a good deal of the work done by these officers was applicable to the new as well as the original issues, this could not relieve the defendants from liability, as he had not been furnished with sufficient information to enable him to separate that part of such work as was applicable alone to the new issues, from that necessary for the determination of the original issue. He therefore held the defendants liable for the costs of the referees and master. He also held that there was no legal authority for allowing the expense of printing papers for a hearing in the Circuit Court as disbursements, and he therefore rejected these items. For the same reason he rejected the item charged for the services of a stenographer and the item for printing notices to call in creditors, and approved and confirmed the taxation as made by the clerk in all other respects.

From this order both parties appeal. The plaintiff, upon the ground of error in disallowing the charges for printing the reports and briefs, printing the notice to creditors, and for the services of the stenographer. The defendants appeal: 1. Upon the ground of error in holding that the reports of the referees and the master were necessary for the determination of the original issue. 2. In holding that the defendants were liable for any of the costs incurred on the new issues. 3. In holding that the defendants were liable for any costs incurred after the order of injunction. 4. In allowing docket fees. 5. In approving and confirming “the rest of the taxation.”

First,' as to the plaintiff’s grounds of appeal. The right to costs depends wholly upon statute, and in the absence of some statutory provision we do not see how they can be claimed. Even the court has no power by ita order to add anything to the allowances prescribed by statute, and hence when a claim to any item, either of costs or disbursements, is asserted, the claimant must be able to point to the statute allowing such item. It is quite clear that there is no statute allowing the expense of printing reports or other papers for a hearing in the Circuit Court as a disbursement in the cause. The nearest approach to such a provision is that contained in section 326 of the Code, where “the expense of printing the papers for any hearing, when required by a rule of the court,” is placed among the necessary disbursements; but it will be observed that the expense of printing is only allowed “when required by a rule of the court,” and we are not aware of any rule, in the proper sense of that term, requiring the printing of any paper for a hearing in the Circuit Court. There is such a rule in regard to certain papers in the Supreme Court, and it is manifest that the statutory provision above referred to applies only to the printing of papers for a hearing in the Supreme Court, because there alone is there any rule requiring the printing of any paper.

The position taken by the counsel for plaintiff, that the order of Judge Cooke, directing the printing of the report of referee Lowe, operates as a rule of court in this case, and brings'the. claim within the provision of the code above referred to, cannot, in our judgment, be sustained. To say nothing of the fact that this order only requires the printing of Lowe’s report, and would not therefore embrace the reports of LeOonte or the master, which of itself would deprive this order of one of the essential characteristics of a rule, which is supposed and- intended to operate generally, and not to be confined to a particular instance, we do not think the language of the section can be properly construed so as to include any order that may be made in the progress of the cause. It will be observed that the language of the section is not when required by a rule or order of the court, as would have been natural and appropriate if the intention had been that the section should be construed as contended for, but the language is,' “when required by a rule of the court,” by which we understand a pre-existing rule of general operation, and not a mere order pro hac vice. .

Nor do we think that the position» taken that this is an interlocutory order unappealed from, and therefore binding upon the parties, can be sustained. In the first place, the order seems to have been ex parte, and whether it was ever brought to the notice of the parties to be affected by it, or if so when, does not appear. But waiving this, we do not see why the present appeal cannot be regarded as an appeal from that order, for this may be regarded as an appeal from a final judgment, in which all interlocutory orders not previously appealed from may be reviewed; for to give the order the effect contended for would make it an “intermediate order or decree necessarily affecting the judgment,” which may be reviewed on appeal from the-final judgment. Code, section 11, subdivision 1. Here the attempt is made to enter in the final judgment a charge as a disbursement, upon the authority of an intermediate order in the cause, the legality of which is questioned and successfully challenged; for we think it clear that no court or judge has any authority to add any item to the costs or disbursements in a case for which there is no statutory authority.

The same remarks will apply to the charges for printing briefs¹ (which seems to be abandoned), and for compensation to the stenographer. There is no statutory authority for either of these charges, and they were properly disallowed.

As to the item for “printing notices,” we agree with the Circuit Judge that they were relevant alone to the new issues, and therefore not properly chargeable against these defendants under the principles laid down in the former opinion.

Next as to the defendants’ exceptions. In the absence of the reports of the referees and the master, -which are not now, and never have been, before us in this case, we cannot undertake to say that the Circuit Judge erred in holding that they were necessary to the determination of the original issue raised by these defendants. On the contrary, we are bound to assume that he was correct in so holding, inasmuch as no error is pointed out.

The second exception is taken under a misconception of the Circuit decree. We do not understand that Judge Fraser held that these defendants were liable for any of the costs incurred in determining the new issues raised by the amendments to the complaint. What he said was, that “a good deal of the work done by the referees and the master is certainly applicable to the new as well as to the original issues,” and then added: “If there is any part of the work done on these reports applicable only to the new issues, I am unable to separate it from the other in any satisfactory way without much more information as- to surrounding circumstances than has been furnished to me in this case;” and we do not see what else he could have said.

The third exception has already been disposed of by the former opinion in this case, which in terms declared that these appellants were liable for the costs incurred in determining the issue originally raised, “whether such costs and disbursements were incurred before or after the granting the order of injunction of the 7th of September, 1875.” It is a mistake to suppose that the original object of the action was affected by the order of injunction, and hence that the case should be regarded as having then terminated, so far as these defendants, appellants, are concerned. The complaint alleged that these defendants had increased, and were continuing to increase, the city debt beyond the amount allowed by law, and this allegation was denied by the answer, though the defendants did say in their answer that the city debt, at the time of the passage of the act fixing a limit to the amount of such debt, far exceeded the amount therein fixed. The issue thus raised, as to whether these defendants had increased, and were continuing to increase, the city debt beyond the prescribed limit, was not determined by the order of injunction, which was merely temporary, and in terms declared to be “until the further order of the court,” and, as held in the former opinion, these defendants are justly liable for all costs incurred in the determination of such issue, whether the same were incurred before or after the order of temporary injunction was granted.

We see no ground upon which the 4th exception can be sustained, and none has been suggested in argument. The 5th ground is too general to require any further notice at our hands.

The judgment of this court is, that the order or decree appealed from be affirmed.

1 I. e., on Circuit. — Reporter.