Christian v. Waialua Agr. Co., Ltd.

• Decision Date: 16 January 1930
• Docket Number: 1920.
• Parties: ELIZA R. P. CHRISTIAN, AN INCOMPETENT PERSON, BY HERMAN V. VON HOLT (SUBSTITUTED FOR GEORGE H. HOLT, DECEASED), HER GUARDIAN, v. WAIALUA AGRICULTURAL COMPANY, LIMITED, AN HAWAIIAN CORPORATION, AND JAMES L. HOLT.
• Court: Hawaii Supreme Court

31 Haw. 242

ELIZA R. P. CHRISTIAN, AN INCOMPETENT PERSON, BY HERMAN V. VON HOLT (SUBSTITUTED FOR GEORGE H. HOLT, DECEASED), HER GUARDIAN, v. WAIALUA AGRICULTURAL COMPANY, LIMITED, AN HAWAIIAN CORPORATION, AND JAMES L. HOLT.

No. 1920.

Supreme Court of Territory of Hawai'i.

January 16, 1930

Argued December 30, 1929.

MOTION TO DISMISS.

Syllabus by the Court

The costs required by section 2509, R. L. 1925, to be paid in order to perfect an appeal to this court are those which are authorized by statute to be charged by courts for the filing of papers, holding of hearings, etc., by way of partial compensation for the judicial service rendered by courts to litigants and which when finally collected become government realizations.

B S. Ulrich (Ulrich & Hite on the briefs) for the motion.

A L. Castle (Robertson & Castle on the brief) contra.

PERRY C. J., BANKS AND PARSONS, JJ.

OPINION OF PERRY, C. J.

From a decree entered by the circuit judge on October 16, 1929, the respondent, the Waialua Agricultural Company, Limited, seeks to take an appeal to this court. It filed its written appeal and notice of appeal on October 19, within the time limit of five days prescribed by law, and on the same day and within the time limit of ten days prescribed by law, it paid to the clerk of the circuit court the sum of $171.20 as costs. The petitioner moves in this court to dismiss the appeal on the ground that the respondent " did not, as expressly required by the provisions of the Revised Laws of Hawaii 1925, pay the costs theretofore accrued and duly taxed in said cause, and that the sum of $810.45 theretofore accrued and duly taxed by order of said court was not paid within the time provided by law or at all; that the payment of said costs was in no way waived by petitioner herein." The costs accrued, as entered in the docket of the clerk of the circuit court at the date of the order of the circuit judge taxing costs, were in the sum of $160.70 and at the date of the payment by the appellant of the costs amounted to $171.20, the difference of $10.50 having accrued after the presentation of the bill of costs and before the payment on October 19. On October 15, 1929, the circuit judge allowed total costs in the sum of $2256. This ruling was upon a bill of costs presented by the petitioner and containing the following items: fees of sixty-nine witnesses, $138; mileage of witnesses, $195.44; " paid London commissioner as per affidavit attached, $77.92; paid Oxford commissioner as per affidavit attached, $504.88; paid notary at Port Townsend Washington, as per affidavit attached, $5.00; paid notary at Cincinnati, Ohio, as per affidavit attached, $5.85; paid William S. Chillingworth as per affidavit attached, $150.00 paid D. K. Sherwood as per affidavit attached, $5.80; 3 witnesses subpoenaed on accounting, $6.00; to accrued costs of court as per clerk's docket, $160.70; 29 witnesses in England called and sworn, $58.00; to costs of transcript as per stipulation, $1, 285.38; to drawing petition, $3.00; to two copies thereof, $3.00; to attendance on argument demurrer, $3.00; to attendance on trial, $3.00; to drawing bill of costs, copy and service, $1.00; to attendance on taxation of costs, $1.00, " --a total of $2606.97.

The circuit judge allowed $91 in lieu of the first two items of $138 and $195.44, respectively, disallowed the item of $150 paid to Chillingworth and the item of $58 for " 29 witnesses in England" and allowed all the other items as claimed in the bill, remarking at the time that the item of $1285.38 for costs of transcript had already been paid by the respondent and was " included for purposes of completeness."

The statute under which this appeal was taken (R. L. 1925, Sec. 2509) reads as follows: " Appeals shall be allowed from all decisions, judgments, orders or decrees of circuit judges in chambers, to the supreme court, except in cases in which the appellant is entitled to appeal to a jury, whenever the party appealing shall file notice of his appeal within five days, and shall pay the costs accrued, and deposit a sufficient bond in the sum of fifty dollars, conditioned for the payment of the costs further to accrue in case he is defeated in the appellate court, or money to the same amount, within ten days after the filing of the decision, judgment, order or decree appealed from." While, as above appears, the ground of the motion to dismiss as originally presented was that items of taxed costs aggregating $810.45 had not been paid by the appellant, the ground upon which reliance was placed by the appellee in argument was that the items of $77.92 and $504.88, or an aggregate of $582.80, paid to the " London commissioner" and the " Oxford commissioner" for their services in taking testimony, had not been paid by the appellant in connection with the perfecting of the appeal. The precise question before us is, therefore, whether under the circumstances of this case the two sums aggregating $582.80, which were paid to the commissioners in England for their fees and expenses in taking testimony, are " costs accrued" within the meaning of section 2509.

Speaking generally, costs are the taxable expenses of litigation. But the word " costs" is susceptible of different meanings. It is used in different senses. Giving it its broadest signification it may include all of the items which are taxed in favor of a successful party, such as the attorneys' fees permitted by statute, fees and mileage of witnesses, stenographers' fees in the making of transcripts, statutory fees for filing papers, for issuing process, for serving witnesses, for judicial hearings and orders and for other judicial charges, which statutory fees go to the government as partial compensation for the maintenance of the courts, and other expenses incurred by the successful party and deemed reasonable by the taxing officer. On the other hand it may be so used as not to include some of the items taxed in a bill of costs and so as to include the statutory fees just referred to and other items sometimes termed costs of court. It may also be used as including only the statutory costs which are entered customarily in the docket of the clerk of court and which when collected belong to the government, whether the Territory or the city and county.

That the word " costs" in section 2509 is not used as including all items taxable as costs has been definitely decided by this court in Lufkin v. Grand Hotel Co., 24 Haw. 744, 746, 747. This was an equity suit for foreclosure of a mortgage and the appointment of a receiver. The appellee moved to dismiss the appeal on the ground that the appellant had paid only $36.75, being " court costs, " and had not paid an item of nearly $7000 which had been incurred for the fees and expenses of the commissioner in advertising and making the foreclosure sale and in fees of the attorneys for the petitioner and the salary and expenses of the receiver. While in that case at the time of the filing of the notice of appeal " there had been no finding by the court fixing the amount of fees, salaries and expenses which were afterwards allowed in the decree which also confirmed the foreclosure sale, " that fact was not made the basis by this court for its ruling upon the motion to dismiss. The court denied the motion, saying: " So far as we are aware the question involved in this motion has never been passed upon by this court, though undoubtedly many cases in which such items of expense were incurred have come to this court either with or without such items being paid. It seems to us that the answer to movant's contention is that the items cannot be properly classed as costs of court and therefore do not fall within the statutory provision requiring the payment of the accrued cost to perfect an appeal." Whatever else that decision may or may not have decided, it certainly did decide that not everything which can be properly classed as costs is " costs" within the meaning of section 2509.

In the remaining language of section 2509 there are only two indications, both very slight, as to the sense in which the word " costs" is there used, but both of those indications are in favor of the view that the legislature had in mind only those costs (referred to in the argument in this court as " clerk's costs" ) which the statute expressly authorizes to be charged by the courts for the filing of papers, for the holding of hearings, etc., and which are to become, when collected, government realizations. One of them is that the bond or cash required to be deposited, " conditioned for the payment of the costs further to accrue in case he" (the appellant) " is defeated in the appellate court, " is in the sum of $50 only. While ordinarily that sum is sufficient for the " clerk's costs" as above defined, still, in view of the power conferred upon this court by section 2511 to hear newly discovered evidence in cases appealed from circuit judges in chambers, that sum would not be sufficient to meet the fees and expenses of commissioners appointed to take evidence or to meet other larger expenditures properly taxable as costs in favor of the successful party. The other is the provision that " appeals may be allowed upon like terms as to filing bond and payment of costs, * * * from decrees overruling demurrers or from interlocutory judgments, orders or decrees whenever the circuit judge may think the same advisable for the more speedy termination of litigation." Appeals from interlocutory judgments orders or decrees may well take place, as for example in partition suits and in suits for the foreclosure of liens, after a somewhat lengthy trial in which considerable expenditures for fees of commissioners, masters and other judicial officers and for other purposes...