2 Paige Ch. 45 | New York Court of Chancery | 1830
Without examining the question at length, whether this court can in any case entertain a bill of review after the final decree of the court for the correction of errors in the cause, it may be sufficient to say that the case of Barbon v. Stearle, (1 Vern. 416,) relied on by the complainant’s counsel, seems to be an authority against such right. The allegations in the bill in that case where, that pending the appeal, as the complainants had since discovered, the defendant had suppressed certain evidences and burnt the deed on which the complainant’s title depended. And a discovery of these matters was prayed merely in aid of an application which was intended to be made to the house of lords, when it should be in session, for relief there. The complainant in his bill, as well as the counsel on the argument of the demurrer, expressly disavowed any authority in the court of chancery to reverse or alter the order or decree of the house of lords. And the lord chancellor himself appears to have thought he had no such right; for he directed that after the defendant had answered the bill, the complainant should not be permitted to proceed any further without the special leave of the
But if that decree" was not in the way of this application, I think the facts in this case are not sufficient to authorize the filing of,a bill of review. . If the decisiop of this court, or that' of the,Court of errors, had turned upon the question whether the note had or had not been paid, I presume the result would have been different, even on' the facts as originally presented in the cause. The case turned wholly on the. statute of limitations, which was considered by both, courts as a legal bar to the suit, whether the note had been ever paid or not: My own opinion certainly was that the note never had been paid; but I did not believe the defendant had acknowledged it as a valid and subsisting debt; or had ever offered or promised to pay it, within six years previous to the commencement of this suit. • And the .same opinion was expressed by several members of the court .which affirmed my decree. • . * ' '
I think the counsel has misunderstood the deposition of the defendant which was. made before the examiner# when takén in connection with his original answer. In the answer he stated his belief that the note had been actually paid. If: in the further progress of "this suit his opinion had been altered on that point, or he had serious doubts on the subject, he could not reiterate the expression of that belief on his examination as a witness, without doing great injustice to one of the parties in that suit. He does .not- however admit that the note never had been paid'; he at most evades giving any direct answer to that inquiry. The language of his deposition, in answer to ' successive, interrogatories which were undoubtedly put to him by the complainant’s counsel, is, that he does not know when, 'where, or to whom the note Was paid; but that at all events'it is not now a sub
I am satisfied the new matters now sought to be brought before this court by the bill of reveiw could not have altered the result if they bad been given in evidence on the former hearing. The petition must therefore be dismissed with costs to be taxed against the complainant, and to be included in the same bill with the general costs in the cause ; and there must be a decree, in the usual form, to carry into effect the decision of the court of errors as contained in the remittitur. The costs of the proceedings in that court on the appeal, must be taxed separately, but all the costs in this court must be included in one bill and the taxed costs in both courts must be filed with t-he register and annexed to the enrolment of the final decree.
On the question of re-taxation which has been made and argued in this cause, I have looked into the bill of costs and the petition and affidavits and find that the counsel fees were properly allowed, except some which were incurred in rela
As the costs in this cause must be referred back to the master for a re-taxation, it is proper to suggest that he has allowed numerous items in this bill which ought not to have been taxed against the complainant, whether objected to or not. By one of the ■> provisions of that title of the revised statutes which relates to the taxation of costs, (2 R. S; 653, § 5,) it is made the duty of the taxing officer to examine the bills presented to him, whether the taxation be opposed or not, and to be satisfied that the items charged are correct and legal, and to strike out all charges for services which were .unnecessa
If the defendant puts in an insufficient answer, which is excepted to on that ground, if the exceptions are submitted to, or allowed, he has no right to charge the complainant with the additional expense which has been produced by his neglect to put in a sufficient answer in the first instance. The draft and copies of so many additional folios as would have been necessary to render the first answer full and perfect, or as have been produced by subsequent amendments to the bill, are properly taxable. But the charges for perusing and amending, filing, swearing to the further answer and serving the same, and others of a similar description, which would not have been necessary if the first answer had been complete, cannot be taxed against the complainant. The petition for further time to consider the exceptions in this case, and the stipulation or submission to answer further, and several other charges of a similar nature, fall within the same rule. The master has allowed for a draft and three copies of the answers, &c. in addition to the engrossed copy to file; this is one copy more than is taxable by the settled practice of the court, and two more than is usually made. He has also allowed for two folios for the draft and copies of the affidavits of the truth of the answers, petitions, &c.; this is also improper. The jurat to the answer or petition, if properly drawn, cannot contain one folio, and ought not to be drawn in the shape of a separate affidavit. It is the mere certificate of the officer that the defendant or petitioner was sworn to the truth of the answer or petition. It should always be drawn up by the solicitor, in the form prescribed by the 18th rule, and estimated as part of the folio contained in the answer or petition. The charge for attendance before the master on the exceptions, which were finally déci
The rule as to costs of interlocutory proceedings, in relation to which no directions were given at the time, and which are to be allowed as costs, in the cause in favor of the party who obtains a decree for costs, is this: The party mating a successful motion, and which is not granted as a mere matter of favor or to relieve him from the consequences of his own default, is entitled to the costs of the motion; as costs in the cause; but the party opposing such a motion unsuccessfully is not entitled to the costs of opposing, as costs in the cause; and if a party makes a motion which fails, he is not entiled to his costs, but the party opposing , may have his costs as costs in the cause, unless a different direction is given at the time. (1 Sim. & Stu. Rep. 357:)
The master has allowed the defendant’s solicitor by the folio for drawing his bill of costs, amounting to $6,50. The whole of this charge is improper, as no such allowance is made by the fee bill. The solicitor’s fees in the Revised Statutes are taken from the act of April 21st, 1818, and the . provisions of that act were not intended to be altered by the revisors or the legislature. (Rev. notes to report of eh. 10, pt. 3, p. 31, 32.) It is well known that the fee bill of 1818 was prepared by the late Chancellor Kent, under a resolution of the assembly, with remarks explanatory of each item. The second clause of the present fee bill, which authorizes a charge by the "folio for drawing pleadings “and other proceedings in a cause,” was not intended to cover the draft of a bill of costs. The fee bill of 1813 had a special provision allowing for such draft by the folio, but it was intended to. be excluded by Chancellor Kent’s bill, although the second clause was retained as in the bill of 1813 and in that which is now in force. In his report to the assembly, (Journal of February 25, 1818, p. 335,) the late chancellor has appendéd this remark to the item for copies of the bill of costs: “ The allowance in this case is much diminished from the act of 1813, by totally omitting the following charge: ‘Drawing costs for taxation, for every ninety words, twenty
Under the present law the taxed bills of costs are to be annexed and to constitute a part of the enrolment of the decree. They must therefore be carefully engrossed without erasures or interlineations, like other papers filed in the cause; and if they are not in that situation, or if any considerable deductions are allowed on taxation, they must be redrawn at the expense of the solicitors offering them for taxation, before the taxing officer certifies thereon the amount at which they are taxed.
The bill of costs in this case must be referred back to the master to be taxed on the principles above stated; rejecting the costs of the two special motions -where the late chancellor denied costs to either party. The bill must be re-drawn, so as to include the several items of fees due to the examiner in detail, together with the costs of opposing the application to file a bill of review, and the costs of the enrolment of ’ the decree of this court founded on the remittitur, and of the execution to carry the decree into effect; and excluding the items of the present bill which are declared to be improper. A copy of the bill as re-drawn, with the usual notice of taxation is to be served, and neither party is to have any costs on this application for a re-taxation.