61 N.C. 98 | N.C. | 1867
The defendant had brought suit in 1857 in the District Court of Navarro County, Texas, and in the course of such suit a number of slaves had been attached by Walton as sheriff, and had been held in his possession for several months. At May Term, 1858, judgment was given against the plaintiffs in that cause for "costs," which thereupon were taxed. At September Term Walton filed a motion in writing, asking for a retaxation in order that his costs for holding the slaves might be allowed. The present defendants had never been in Texas, and had carried on their suit there by attorneys. Notice of Walton's motion was served upon those attorneys. They objected to such notice, on the ground that they were no longer the plaintiffs' attorneys, the suit which they had been authorized to bring having come to an end in (99) the preceding May. The court in Texas overruled this objection and, after an investigation, gave judgment for the amount now sued for.
It was also shown that upon the termination of the suit, at May Term, an agent of the present defendants, then in court, had instructed the attorneys to attend to the matter of costs, so as to reduce them as much as possible.
To the present action the defendants pleaded nul tiel record, payment,general issue, statute of limitations; and, specially, that defendants hadno legal notice of process, and that process was not legally served uponthem.
Verdict for the plaintiff. Rule for a new trial. Rule discharged. Judgment and appeal. 1. The record now sued upon is the highest evidence of the law of Texas upon the points involved therein. Irby v. Wilson, 1 Dev. Bat. Eq., 568;Davidson v. Sharpe, 6 Ire., 11; Sheehy v. Life Co., 91 Eng. C. L., 597.
2. The only question left to this Court is whether that law is or is notrepugnant to natural justice.
By bringing a suit in the courts of Texas these defendants submitted themselves personally to the laws of that State in everything incidental to such suit. The judgments there upon the subject of costs, as here in equity, are for "costs" generally. These judgments cover all costs properly taxed thereafter by the clerk, as much as if they had been at first spread out in detail. For a valid taxation of costs it is not necessary, at law or in equity, that the party against whom they are taxed should be present, or should have been notified. Tidd, 2d 999; Arch. Pr., 1, 224; Dan. Ch. Pr., 3d 1586. Generally, neither the court nor *96 the party knows anything of this. Nor is there any reason why, (100) if a slip has occurred in giving the details properly upon taxation, a retaxation might not be had without notice. If the former execution has been returned "satisfied," a motion to the court for an amendment may be necessary before issuing a second (Poor v. Deaver, 1 Ire., 391); but this, as said by Martin in the case above in 91 Eng. C. L., is a question not of natural law, but merely of procedure; and if Texas do not require it, we cannot review her discretion therein. If costs have not been properly taxed, the party grieved may bring the matter to the attention of the court for redress; but to do so with success he would have to show substantial injury, and not merely want of notification of the time and place of taxation.
The attorneys in Texas were not discharged after the judgment in May. The rule, both at law and in equity, is, that one who is admitted to represent a party as attorney, cannot cease such representations withoutthe permission of the court; Dan. Ch. Pr., 1, 512, which gives a rule on the subject that existed at law, at least as far back as 1654. See C. J. Taney's strong language in U.S. v. Curry, 6 How., 106. The principle of the cases in Rol. Rep., 1, 365; 6, 8 and 10 Johns., and 2 Inst., 378, showing that judgment terminates the connection of attorney and client, is not in general the rule even at law. See Arch. Pr., 1, 28, etc. Those cases do not at all affect the practice in equity, which is more like the anomalous proceedings in Texas. See, also, Bank of Australia v. Nias, 4 Eng. L. E., 252; Zulueta v. Vysent, 3 Eng. L. E., 76; Hope v. Hope, 27 Eng. L. E., 249, 1 Dan. Ch. Pr., 502, etc.; Johnson v. Person, 1 Dev. Eq., 364.
Costs retaxed are recovered under the original judgment in the cause.Gov. v. Twitty, 1 Dev., 150; Sneed v. Rhodes, 2 D. B., 386, and Poorv. Deaver (above). See Peyton v. Brooks, 3 Cr., 92. The foreign judgment here sued upon is that of May, 1858, the obligation (101) of which, upon the persons of these defendants, cannot be denied.
How irregularly, proceedings for obtaining costs are entitled, may be seen from many cases in our reports; see Clerk's Office v. Allen, 7 Jon., 156, and cases there cited; also Pearson v. Haden, 1 Mur., 140. It is a fundamental principle that a party must have notice of any proceeding against him before he can be bound thereby. The defendants say they had no notice of the proceedings against them, and that therefore they are not bound.
The facts are that the defendants instituted a suit in Texas, and failed therein, and judgment was given against them for the costs. The plaintiff was sheriff in Texas, and the present claim is for his fees as sheriff in the Texas suit, and was a part of the costs in the cause. *97 The sheriff's fees were not taxed by the clerk in the bill of costs, as at first made out, and were retaxed, upon motion. Notice of the motion was served upon the attorneys of the plaintiffs in that suit who are the defendants in this.
1. Were the defendants entitled to special notice? They were the plaintiffs in the cause, and, therefore, were constructively in court all the while, to see all the proceedings from the beginning to the end; and the end is not the close of the trial, but the complete satisfaction of, or discharge from, the judgment of the court. The sheriff's claim was not a distinct demand, separate from that suit, but was incident to it, and is expressly stated in the case to be a part of the costs; and the proceeding to retax was not a separate suit, but was a motion in that cause. It would seem, therefore, that as the defendant in this (the plaintiffs inthat) suit sought the aid of the Texas court and its officers, they were bound to know what was the judgment of the court without special notice. The judgment was that they should pay the costs; the sheriff's fees were a part of the costs; and, therefore, the judgment was that they should pay the sheriff's fees; and that being the judgment (102) of the court, the failure of the clerk to make a proper memorial of it, and to tax the costs, did not alter the judgment. And upon its being brought to the notice of the court that its judgment was not properly entered by the clerk, it was the duty of the court to have the record corrected, so as to make it speak the truth. It would seem, therefore, that no other court can look into the proceedings, to see whether the court ought to have rendered such a judgment; but that every other court must give faith and credit to the same, if the person, against whom the judgment is, was regularly a party to the suit; and in regard to that no question can arise in this case, because the defendants in this were the plaintiffs in that suit.
But suppose this were not so, then:
2. Did the defendants have notice of the motion to retax the costs?
The defendants live in North Carolina, and the notice was served upon their attorneys in the Texas suit. The attorneys say that they were instructed by the defendants to see that the costs were reduced as much as possible, but they were not specially instructed in regard to the notice to retax. And the defendants insist that they ceased to be their attorneys when the trial ended, although they had not been expressly discharged. "The warrant of attorney continues until the end of the suit, and he may sue out and prosecute execution after judgment, and may receive the amount of the judgment and costs. Pending the suit, the client cannot change his attorney without leave of the court." 1 Arch. Pr., 27. In the case of The UnitedStates v. Curry et al., 6 *98 How., 106, in which a question was made as to the validity of a citation in a writ of error, served upon the attorney in the original cause,Taney, C. J., in delivering the opinion, says: "No attorney or solicitor can withdraw his name after he has once entered it on the record, without the leave of the court. And while his name continues (103) there, the adverse party has the right to treat him as the authorized attorney or solicitor, and the service of notice on him is as valid as if served on the party himself. And we presume that no court would permit an attorney, who had appeared at the trial with the sanction of the party, expressed or implied, to withdraw his name after the case was finally decided. For, if that could be done, it would be impossible to serve the citation, where the party lived in a distant country or his place of residence was unknown, and would, in every case, occasion unnecessary expense and difficulty, unless he lived at the place where the court was held. And so far from permitting an attorney to embarrass and impede the administration of justice, by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke."
In that case the affidavit of the attorney was filed, and in that it was stated that at the time of service of notice on him he was not the attorney, but had been paid his fee and discharged, and that he so informed the marshal when he served the notice. Yet the notice was held to be sufficient. "If the opposite party wish to be present at the taxation of cost, and doubt if the other party will give him notice of it, he may obtain from the clerk of the rules a rule to be present at the taxation. In fair practice, however, it is usual to give notice of taxation without being ruled to do so." I Arch. Pr., 225.
It is usually intrusted to the clerk to make out the costs, and a motion to retax is in the nature of an appeal from his decision to the court; and although the opposite party may have no such right to notice, as that it can be collaterally inquired into in another court, yet it is supposed that the court in which the motion is made will see that notice is given. In the Texas court notice was served upon the attorneys in the cause, and we cannot see that there was any error. There is no error.
PER CURIAM. Judgment affirmed.
Cited: Day v. Abrams,
(104)