101 Tenn. 669 | Tenn. | 1899
These cases have been treated as motions to retax costs. They are not properly mo
From the agreed statement of facts it appears that the parties complaining were indicted and prosecuted in the Court below, Oden for a felony and Fitzgerald for a misdemeanor. In each case a nolle prosequi was entered, and defendants were directed to be discharged on payment of costs. In the felony case the Clerk taxed up $10 as the District Attorney’s fee, and in the misdemeanor case a fee of $5 for the same purpose. The bills of costs, including these fees, were paid by the respective defendants, and they were thereupon discharged. When the Clerk collected these fees he paid them over into the State treasury, as required by what is com
Under this statement Of facts, no motion will, lie against the Clerk for the improper collection of these fees. They are not in his hands, but in the State treasury. Whether the costs could be re-taxed, so as to reach the State treasury, does not arise, as such attempt is expressly disavowed. So far as this record shows, the defendants paid these fees, as costs, willingly, and made no motion to have them refunded while in the hands of the Clerk. We need not consider, under these facts and this motion, whether they were properly or improperly taxed.
The sworn statements of the defendant, Fitzgerald, in his case, and of J. L. Pendleton, in the Oden case, were heard by the Court, substantially to the effect, and for the purpose of showing, that the defendants were to be taxed full costs, as upon conviction, and that they saw the items, and made no objection thereto. These statements were excepted to, on the ground that they were attempts to add something which did not appear in the judgments of nolle -prosequi. The objection was overruled by the trial Judge, and, we think, correctly, but we think the affidavits are immaterial. The Court will presume the defendants knew the items in the bills of costs, and assented thereto when they paid them. While they objected to the State and county tax,
The judgment of the Court below is affirmed in each case, with costs.