Crespo v. Viola
| Citation | 152 La. 1088,95 So. 256 |
| Decision Date | 27 November 1922 |
| Docket Number | 25649 |
| Court | Louisiana Supreme Court |
| Parties | CRESPO v. VIOLA |
Prentice E. Edrington, Jr., of New Orleans, for applicant.
C. A Buchler, of Gretna, for respondent.
Plaintiff sued her husband for separation from bed and board upon the grounds of cruel treatment and public defamation. Defendant denied these allegations and reconvened for an absolute divorce on the charge of adultery. The case was tried, both upon the original and reconventional demand, and after some delays, the trial court informed defendant that unless he paid the stenographer (the latter having refused to file the note of evidence without being paid), the court would proceed to decide the case without regard to the filing of the testimony.
Thereupon defendant made this application for writs of certiorari, prohibition, and mandamus to prohibit the said judge from deciding said cause without such testimony, and to compel him to order the filing thereof by the stenographer, who had been officially sworn as such.
Opinion.Article 552 of the Code of Practice provides:
"The costs to be paid by the party cast include not only the taxed costs, but also all the expenses * * * in taking testimony by commission, and the compensation allowed for their services to such experts, auditors, or judicial arbitrators, as may have been appointed in the suit; and also the costs of copies of notarial acts, of judgments, and other copies of the records of other public officers, necessary in the cause."
Section 4 of Act 203 of 1898 permits clerks of court to demand of plaintiff a deposit of $ 10 with the filing of each civil suit, one half of which he is entitled to keep and the other half to be turned over to the sheriff. Section 5 allows them to also demand security for costs of plaintiff "at the time of filing suit," or after the advanced costs have been consumed; and provides the manner in which they may collect their costs from plaintiff, which become due and collectible on January 1st and July 1st of each year. The bill must be approved by the court and 10 days' notice given the surety before execution can issue.
The plaintiff is therefore primarily bound for the costs in every suit which he brings, and the defendant owes no costs until he is cast. C. P. 549; Fink, Executor, v. Martin, 10 Rob. 147 (Bk. 19 Reprint Ann.) and authorities cited in notes. The reason for this rule of law is that the plaintiff is the party provoking the litigation and until he has obtained a judgment against defendant, who is brought into court, not voluntarily, but by the suit, has no right to tax the latter with costs. Plaintiff commences the proceedings requiring the services of the officers of the court, and should therefore pay for them until it has been otherwise decreed. Then, too, the judgment which he obtains carries with it the costs, becomes his property, and having paid the costs, he may recover the same in the execution against defendant.
Respondent judge contends first that Act No. 64 of 1900 amending and re-enacting Act No. 28 of 1890 with reference to stenographers or shorthand reporters throughout the state, other than the parish of Orleans, is unconstitutional; but that, in any event, a defendant who makes a reconventional demand becomes the plaintiff as to that demand, and is therefore liable for the costs thereof, within the contemplation of the Act 203 of 1898. However, we do not concur in that view. The rule of liability for costs of litigants now prevailing in most, if not all, jurisdictions, was unknown to the common law, and in order for a party to be liable therefor, the law must be plain. Louisiana Dig. vol. 2, Verbo Costs, p. --.
The Code of Practice, art. 374, defines a reconventional demand as follows:
"The demand which the defendant institutes in consequence of that which the plaintiff has...
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...New Orleans Canal & Banking Co. & La. Nat. Bank v. Heard, State Auditor et al., 47 La.Ann. 1679, 18 So. 746, 47 L.R.A. 512; Crespo v. Viola, 152 La. 1088, 95 So. 256; Atchafalaya Land Co. v. Dibert, Stark & Brown Co., 157 La. 689, 102 So. 871, and State ex rel. Porterie v. Walmsley, 183 La.......
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Dore v. Tugwell, s. 42426
...the statute's constitutionality.4 See also State ex rel. Hall v. Judge of the Tenth Judicial District, 33 La.Ann. 1222 and Crespo v. Viola, 152 La. 1088, 95 So. 256, wherein it is held that a Judge is without interest in raising the constitutionality of a statute.5 The doctrine of these cas......
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GREATER NEW ORLEANS EXP. COM'N v. Olivier, 2004-CA-2147.
...a statute, and not to judges in a criminal cases, to raise the issue of a statute's constitutionality. Id. Similarly, in Crespo v. Viola, 152 La. 1088, 95 So. 256 (1922), this court again held that a judge lacked standing to attack the constitutionality of a statute as a defendant in a mand......
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Price v. Town of Ruston
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