Howard, &C. Asso. v. Philadelphia, &C. R. R. Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: Mercur
• Citation: Howard, &C. Asso. v. Philadelphia, &C. R. R. Co., 102 Pa. 220 (Pa. 1883)
• Decision Date: 01 October 1883
• Parties: Howard Building and Loan Association to the use of Fletcher Budd <I>versus</I> Philadelphia & Reading Railroad Company, Garnishee of Samuel S. Wismer.

Page 220

102 Pa. 220

Howard Building and Loan Association to the use of Fletcher Budd versus Philadelphia & Reading Railroad Company, Garnishee of Samuel S. Wismer.

Supreme Court of Pennsylvania.

January 26, 1883.

October 1, 1883.

January 26th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1883, No. 96 J. Cooke Longstreth, for plaintiff in error.—There was an express waiver of exemption in the bond, and therefore the court should not have allowed it. Besides, the claim was made too late. The attachment execution issued October 21st 1880, and the claim for exemption was not made until March 5th 1881. This was not at the same term, nor within a reasonable time: Bair v. Steinman, 2 P. F. S. 423; Bittennger's Appeal, 76 Pa. St. 105. The costs which a plaintiff recovers are his costs, and are as much a part of the judgment in his favor as the judgment for the debt. There is no privity between plaintiff's witnesses and defendant, and defendant owes such witnesses nothing. Nor is any part of the amount paid to plaintiff on the judgment a trust fund in his hands. The relation of plaintiff and his witnesses is simply that of debtor and creditor, and that relation neither arises out of, nor is modified by the fact of recovery or non-recovery by plaintiff of witness fees as part of his costs in the cause: Curtis v. Buzzard, 15 S. & R. 22; Horner v. Harrington, 6 Watts 334; Utt v. Long, 6 W. & S. 174. It follows that the plaintiff's bill of costs is subject to attachment, and the court should have instructed the jury to find in the garnishee's hands the full amount of the verdict, interest and plaintiff's costs, less Mr. Junkin's fee.

Thomas Hart, Jr., for defendant in error.—The waiver of exemption was restricted by the bond to real estate. The defendant, who lived in Chester county, was not served with the attachment, and filed his claim for exemption as soon as he knew of it, the execution plaintiff having incurred no additional expense by the delay. The claim was clearly in time: Bancord v. Parker, 15 P. F. S. 336. In the cases cited by the plaintiff in error, the defendant was served with the execution, and additional costs were incurred before the claim was made. The amount of Wismer's bill of costs was not attachable. It was exclusively for witness fees and mileage which had not been paid. The same principle applies to these costs as to the fees of the prothonotary and sheriff, which a plaintiff collects for them by his execution. Though the legal title to these fees is in the plaintiff, he collects them merely as trustee for the officers: Ranck v. Hill, 3 Barr 423; Ellsbre v. Ellsbre, 4 Casey 172. The fees and mileage of a witness belong to him as completely as the fees of the court officers, and the party subpœnaing him, upon the recovery of such fees holds them as trustee for the witness: Adams v. Avery, 2 Pitts. 77; Horner v. Harrington, 6 Watts 334; Curtis v. Buzzard, 15 S. & R. 22.

Chief Justice MERCUR delivered the opinion of the court, October 1st 1883.

The main contention in this case involves the right of the plaintiff in a judgment, to his bill of costs, taxed therein.

Costs of the party must not be confounded with fees of the officer. They are, for many purposes, essentially different: Ramsey v. Alexander, 5 S. & R. 344. Costs are an allowance to a party for expenses incurred in conducting his suit: fees are compensation to an officer for services rendered in the progress of the cause: Musser et al. v. Good et al., 11 Id. 247. The plaintiff in a judgment, whether he be plaintiff or defendant in the action, collects the officers' fees not for himself, unless he has paid the officers, but as trustee for the officers who...