Ward v. Rees, 72 P. 581

Ward v. Rees

72 P. 581 | Wyo. | 1903

Corn, Chief Justice.

This was a suit brought to enjoin the levy of an execution. A temporary' injunction was allowed, a demurrer to the petition was overruled and, the plaintiff in error refusing to plead further, there was a judgment by the District Court that the injunction be made perpetual. The original judgment upon which the execution issued was rendered by a justice of the peace and the complaint of the petition is that certain costs, taxed by the justice and included in the judgment, are illegal. The defendant in error tendered the principal amount of the judgment and the costs admitted by him to be legal and the injunction was allowed as to the remainder.

The demurrer shóuld have been sustained. The error, if any, should have been brought to the attention of the justice by a motion to retax the costs and, if the party was dissatisfied with the ruling upon the motion, he had his right under the statute to take the matter before the District Court by appeal or by proceedings in error. The District Court, having the case before it, would then have retaxed the costs and corrected any errors found to exist. In the meantime a stay of execution could be had in the manner provided by statute, until the decision of the District Court was obtained. There was thus a complete and convenient remedy at law and no ground for the intervention of a court of equity by injunction. (Wills v. Goodbread, I Iredell Eq., 9; Mayor v. Cornell, 9 Hun, 215; Allen v. Woodson, 60 Tex., 651; Miller v. Adams, 4 Scam., 196; Peoria R. R. Co. v. Bryant, 15 Ill., 438; Whiteside v. Rayle, 3 Humph., 205; Ross v. McCarty, id., 169.) And the fact that the party aggrieved has lost his remedy by neglecting to prosecute his appeal does not entitle him to relief by injunction. (High Inj., 173.)

There is another slightly different view of the question’ which leads necessarily to the same conclusion and makes it clear that defendant in error was not entitled to the relief sought. It is evident that the petition for an injunc*463tion in this case is in substance merely a motion to retax the costs, and that the temporary injunction was a mere stay of the execution, pending an examination of the cost bill by the District Court. (Lockart v. Stucklen, 49 Tex., 766.) If the court obtained jurisdiction of the matter in this proceeding and decided that no more was legally due than had been tendered by defendant in error, the plain remedy would be to correct the amount stated in the execution. And the officer having the execution in his hands, finding that it was fully paid by the tender, would have only one course to pursue; that is, to return the execution satisfied. But the District Court did not have jurisdiction to retax the costs. The taxation of costs is a merely ministerial act performed by the clerk of the court, or other ministerial officer, and any appeal from the taxation as made by him must be in the first place to the court in which the action is pending, or was tried. And until the question is passed upon by such court, as a court, it cannot come before an appellate court by appeal or otherwise. (Abbott v. Matthews, 26 Mich., 178; McCann v. George, 9 B. Mon., 56; In re Connison, 2 How. Pr., 31; Allen v. Woodson, 60 Tex., 651.)

The fact that a justice of the peace has no clerk and taxes the costs in the first place himself does not alter the case. He is simply the clerk of his own court, and the taxation of costs by him is a merely ministerial act. Not until he has adjudicated the matter upon a motion for that purpose does it become a judicial decision subject to be reviewed by some other court having appellate or revisory jurisdiction. And, obviously, in the absence of all the familiar grounds of equity jurisdiction, it is not one of the duties or powers of a court of chancery to invade the precincts of a court of common law jurisdiction for the purpose of taxing costs. As said in Whiteside v. Rayle, supra: “It is possible that a case might exist in which, owing to the wrong or fraud of a party in a suit at law, a court of chancery might he clothed with jurisdiction to investigate, supervise and correct the taxation of costs. But so summary and so ample *464is the power of a court of common law over the subject that it is difficult to imagine even the existence of such á case.”

The judgment will be reversed with instructions to the District Court to dismiss the suit at plaintiff’s costs.

Reversed.

Knight, J. ,and Potter, J., concur.