Dorrough v. Mackenson

• Decision Date: 23 January 1936
• Docket Number: 6 Div. 810
• Citation: 165 So. 575,231 Ala. 431
• Parties: DORROUGH v. MACKENSON.
• Court: Alabama Supreme Court

165 So. 575

231 Ala. 431

DORROUGH v. MACKENSON.

6 Div. 810

Supreme Court of Alabama

January 23, 1936

Appeal from Circuit Court, Cullman County; W.W. Callahan, Judge.

Action by J.H. Dorrough against G.C. Mackenson. From an order or judgment overruling motion to retax costs, plaintiff appeals.

Reversed rendered, and remanded.

W Marvin Scott and K.J. Griffith, both of Cullman, for appellant.

Verbon E. Owen, of Cullman, for appellee.

FOSTER Justice.

In this cause appellant began a suit by attachment, which was abated on plea. See 229 Ala. 336, 157 So. 257. He then made a motion to retax the costs on account of the number of defendant's witnesses under sections 7239, 7240, and 7247, Code. The court made an order on that motion on April 29, 1935, in the following language: "Motion to retax court cost having been filed more than thirty days after judgment in the case this court overrules the motion." This order was not extended in the form of a judgment.

Appellant then filed a petition in this court praying for a writ of mandamus to the judge for the vacation of that order. We denied that petition on the ground that a final judgment on a motion to retax costs is appealable. Section 7247, Code. But suggested that the judgment may not be in sufficient form to sustain an appeal.

Appellant then made a motion to set aside and vacate the order. The court overruled that motion by formal entry of judgment on the minutes of the court dated June 5, 1935. The appeal bond recites that it is taken from the "judgment in said cause wherein J.H. Dorrough was taxed with court cost in said cause and wherein judgment was rendered against J.H. Dorrough in said cause on the 5th day of June 1935." Appellant assigned as error the order dated April 29, 1935, which overruled the motion to retax the cost, and that which overruled his motion to set aside that order. So that if either such order is appealable, and is properly presented the merits of the question should be considered.

The recitals of the record, which we have copied, showing the action of the court on the motion to retax the costs, are not sufficient to constitute such a judgment as will support an appeal. Webb v. French, 225 Ala. 617, 144 So. 818; Chambers v. Morris, 144 Ala. 626, 39 So. 375; Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117.

But it is not necessary that a judgment shall be formally entered before a motion may be made to vacate it, if there is sufficient entry of a memorandum to sustain a formal entry to be made at a later date. City of Birmingham v. Andrews, 222 Ala. 362, 132 So. 877; Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716. It was there likewise held that until formal entry is made the limitations in section 6670, Code, do not apply.

It is not therefore here necessary that the motion to set aside the order of April 29, 1935, shall have been made and acted on within the limits of that statute, since that order was never extended on the minutes and the cause was in fieri until that should be done. But it evidenced the pronouncement of the court, and appellant could not get his motion to retax heard, nor was the refusal to retax then reviewable. He might have forced the clerk to write up the minutes, and then have appealed, or act as he did here--move to vacate the order, and appeal from its denial. The court did by formal judgment deny the motion to vacate.

If it erroneously refused to hear the motion to retax the costs because that motion was filed more than thirty days after the rendition of the judgment on which the costs were taxed, the motion to set aside should have been granted, and thereupon the court should have heard the motion to retax the costs.

But we are now confronted with the proposition of whether a review of the judgment on the motion to vacate on that ground is properly presented on this appeal. It is well settled by many cases that on an appeal from a ruling on a motion for a new trial, the requirements of section 6088, Code, should be observed by having a bill of exceptions showing that an exception was taken to the ruling, and it should also contain the substance of the evidence on the main trial and that offered on the motion, though neither the motion itself nor the judgment on it need be there set out at length. Drennen Motor Co. v. Patrick, 225 Ala. 36, 141 So. 681; Thomas v. Carter, 218 Ala. 55, 117 So. 634; Stover v. State, 204 Ala. 311, 85 So. 393; Powell v. Folmar, 201 Ala. 271, 78 So. 47; King v. Scott, 217 Ala. 511, 116 So. 681.

Section 6088, Code, requiring an exception to be stated and the evidence set out, merely expresses the general rule that all matters of evidence and rulings pertaining to it, and its effect, have no other place in a record except in a bill of exceptions. But all rulings on pleadings and other matters which are a part of the record proper need not so appear, nor need there be a bill of exceptions to review the ruling on them. We do not think that section 6088, Code, was intended to effect a change in the law in that respect. Reading sections 9459 and 6088, Code, together, we think that the motion referred to in the former is such as would not require a bill of exceptions showing the ruling and exception, and pertains to matters of record otherwise appearing when no evidence is needed on the motion. Accordingly, we have held that when the court improperly sustains a written motion to strike a plea on account of matter shown by the state of the record, it may be reviewed under section 9459. Formby v. Whitaker, 225 Ala. 154, 142 So. 536.

We have that status before us on this appeal. The motion to vacate the order of April 29, 1935, because of what it shows on its face is a matter of record and needs no evidence in support of it. A bill of exceptions for the sole purpose of declaring that an exception was taken appears to be a needless technicality not within the requirements of section 6088, Code, when it is considered with section 9459.

If the court was mistaken in the conclusion declared in his order of April 29, 1935, that he had no right to hear and determine the motion to retax the costs because that motion was made more than thirty days after the judgment on which the costs were taxed, and for that reason overruled it, the motion to vacate that order which merely presented that legal status for consideration by the court, and which needed no evidence to support it, nor other matter not shown by the face of the record, the judgment of the court set out in full on the minutes overruling the motion was appealable on the record under section 6088, Code, without the useless formality of a bill of exceptions showing that an exception was taken. Under those circumstances section 9459 declared the exception.

We cannot here, as appellant asks, amend the order of April 29, 1935, or have it extended in form on the minutes. That power existed in the circuit court. Webb v. French, 225 Ala. 617, 144 So. 818. When properly entered the statute provides for an appeal. Section 7247. An order taxing costs as a condition to continuance is not so appealable and is only reviewable by mandamus. Brown v. McKnight, 216 Ala. 660, 114 So. 40.

Under section 3684 of the Code of 1907, a motion to retax costs because excessive, and because the costs of witnesses not examined were included, could be made at a term subsequent to that at which the judgment was rendered. Ex parte Brickell, 204 Ala. 441, 86 So. 1; Tippins v. Peters, 103 Ala. 196, 15 So. 564; Briley v. Hodges, 3 Port. 335; Lockwood v. Thompson & Buchmann, 198 Ala. 295, 73 So. 504.

But section 7247, Code 1923, provides that "the party aggrieved may move the court within thirty days from the rendition of judgment *** setting forth the particulars in which the clerk has erred." Section 3684, Code 1907 (now amended by act 1911, rewritten by the Code committee as section 7247), did not contain a time limit in which the motion might be made. That limit was written in by the Code committee as the notation indicates.

Section 3679, Code of 1907, was brought forward without change as section 7239. Section 3680 was amended by the Code committee so as to fix a time limit of thirty days after the rendition of the judgment in which the motion there mentioned must be made. The three sections now sections 7239, 7240, and 7247 were set in the Codes in the same article until the Code of 1923, when section 7247 was set off into a new article entitled "Retaxation of Costs." Certainly the three Code sections must be considered together.

It is clear that under section 7239 the clerk should not tax the witnesses contrary to its requirements, unless the successful party shall within thirty days move the court for instructions to do so under section 7240. It is prima facie excessive. Moore v. Blackwell, 217 Ala. 215, 115 So. 248; Terry v. Montgomery, 166 Ala. 130, 52 So. 314; Forcheimer v. Kaver, 79 Ala. 285; Briley v. Hodges, 3 Port. 335; Porter v. Tennessee C., I. & R. Co., 13 Ala.App. 632, 68 So. 808.

Section 7247, until it was amended so as to provide for an appeal, and to fix a time limit, and as it appeared in Codes prior to that of 1923, was substantially an affirmation of the rule without the statute as declared in Forcheimer v. Kaver, supra; Porter v. Williams, 22 Ala. 525. The effect of the addition was the inclusion of the amendatory feature of the act of 1911, and the time limit by the Code committee. The time limit did not add to the circumstances when it was appropriate or necessary.

It is not the duty of the unsuccessful party to assume that the clerk will violate his duty by taxing the costs of witnesses' fees contrary to section 7239, when the successful party has not made a motion contemplated by section...