Behr v. Baker

• Decision Date: 02 March 1932
• Docket Number: No. 67.,67.
• Parties: BEHR et al. v. BAKER et al.
• Court: Michigan Supreme Court

257 Mich. 487

241 N.W. 229

BEHR et al.

v.BAKER et al.

No. 67.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Wayne County; Allan Campbell, Judge.

Suit by Fred A. Behr and another, copartners doing business as Behr & Coolidge, against Erle K. Baker and another. From taxation of costs by the clerk, plaintiffs appeal.

Affirmed.

See, also, 255 Mich. 607, 238 N. W. 473.

Argued before the Entire Bench.

WIEST, J., dissenting.Milburn & Semmes, of Detroit (Edmund C. Shields, of Lansing, of counsel), for appellants.

Oxtoby, Robison & Hull, of Detroit (Leo I. Franklin, of Detroit, of counsel), for appellees.

WIEST, J.

This is an appeal by plaintiffs from taxation of costs by the clerk and questions the items for printing the record and the brief, inclusive of an abstract of the testimony, also fee for bond on stay of proceedings.

Defendants contend that the rules do not provide for an appeal and therefore it should not be entertained. The power is inherent in the court, and needs not rule.

Plaintiffs claim that the amounts taxed for printing the record and brief are in excess of a reasonable amount.

The record is somewhat prolix, and the abstract of testimony lengthy, but complies with the rules, and the cost thereof is established by the printer.

Plaintiffs make the following objection: ‘They object to the item of $500.00 for the premium on bond to stay proceedings, on the ground that there is no rule or statute authorizing the taxing of such sum, or any sum, paid as premium on bond to stay proceedings; that a bond to stay proceedfings is not a bond required by law, and the cost thereof is not, therefore, taxable as costs.’

Court rule No. 5, § 7, provides: ‘Whenever a bond is required by law in any action or proceeding, the reasonable cost of procuring such bond shall be part of the taxable costs of the case, unless otherwise ordered by the court.’

Under this rule the clerk taxed the item for premium on the bond given to stay proceedings. I think the rule beyond judicial power, and therefore void, and hold that the expense of the bond to stay proceedings pending the appeal cannot be taxed as costs.

With such item eliminated, the costs will stand as taxed by the clerk.

NORTH, J.

I think the rule (rule 5, § 7) is valid under which the premium paid for the stay bond was taxed. General rule making power is conferred upon this court by the Constitution (article 7, § 5); and further by legislative enactment ‘the regulation of...