Dozier v. Payne, 4 Div. 293.

• Decision Date: 24 June 1943
• Docket Number: 4 Div. 293.
• Citation: 244 Ala. 476,14 So.2d 376
• Parties: DOZIER v. PAYNE.
• Court: Alabama Supreme Court

14 So.2d 376

244 Ala. 476

DOZIER v. PAYNE.

4 Div. 293.

Supreme Court of Alabama

June 24, 1943

O S. Lewis, of Dothan, for appellant.

No attorney marked for appellee.

BOULDIN Justice.

This appeal is to review the decree of the court below taxing the successful complainant in equity with all the costs of suit amounting to $29.25. The taxation of costs in equity causes is governed by Equity Rule 112, Code 1940, Tit. 7, Appendix which, in pertinent part, reads: "Costs will be imposed by the court or judge having jurisdiction at such times during the litigation as he deems proper, subject to correction for improper exercise of his discretion, and may be apportioned by him between the parties * * *."

This rule needs no elaboration. It follows the long established rule in equity vesting in the chancellor a discretion in the taxation of costs; but, says the rule, "subject to correction for improper exercise of his discretion." An "improper" exercise of discretion appears when the record, after indulging all fair intendments in favor of the ruling, discloses the taxation of costs was unjust and unfair. Otherwise the action of the trial court should not be disturbed.

The general rule at law, usually followed in equity, is to award the costs in favor of and not against the successful party in the suit. As a rule this is just. Apportionment of costs may be just in many instances dependent upon the particular case. Looking to this record, we find the bill was filed by the purchaser against the vendor to enforce specific performance of an executory contract in writing for the purchase of a house and lot in Dothan.

The contract was dated October 23, 1936. Its material stipulations were: "The said Henry Dozier agrees to pay for said house and lot the sum of Eight Hundred and Fifty Dollars, payments to be made as follows: Twenty-five Dollars down and ten dollars ever successive month thereafter until the entire amount of said purchase money Eight Hundred and Fifty Dollars, together with interest at the rate of 6% per annum, interest payable annually and all taxes shall have been paid; and upon the payment of the last installment, as above set forth, I hereby agree to execute to the said Henry Dozier a deed conveying all of my right, title and interest in and to the above described property."

The bill filed November 27, 1942, alleged complainant had paid a total of $948 on the purchase price, and being desirous of paying the balance, "requested of defendant a statement of amount due, and he stated it was $265.00, whereupon, defendant requested the defendant to make out an itemized statement, as he did not feel that he owed that much, and employed O. S. Lewis, an attorney of Dothan, Alabama, to obtain this for him, but defendant has failed and refused to furnish such statement, and plaintiff avers he does not owe defendant $265.00, demanded by him; that he is an uneducated negro and does not know how to calculate interest, but he is informed and believes, and upon such information and belief, states, that he only owes defendant a little over $100, but whatever he owes on the purchase price of said property he stands ready, able and willing to pay, and hereby offers to do equity."

The respondent made no answer, suffered a decree pro confesso, and appeared in person on a reference to ascertain the amount still unpaid.

Without dispute complainant's attorney had written defendant two letters asking for a statement, the second letter being dated October 22, 1942. Mr. Lewis testified: "After that letter was written Mr. Payne came to the office and said that Henry Dozier owed him $265. I asked him to give me an itemized statement so I could see exactly how it was and he said he wasn't doing that, that he would make a deed to the property upon the payment of $265 and that's all he would do. Not being able to get an itemized statement from Mr. Payne, I filed this bill for Henry Dozier to enforce this contract."

On the reference respondent rendered a statement showing payments of $895, which covered the principal $850 and $45 to be applied to the interest, leaving unpaid interest $155.34, and $72.80 taxes paid by defendant on the property for several years, 1936 to 1942, inclusive, making a total of $228.14 still unpaid. This statement was reported correct by the register, and was confirmed by decree of the court. The costs in the case were all incurred at complainant's instance. If they were needlessly incurred, the taxation of costs against him should not be disturbed.

This case should not be confused with a statutory demand for a statement of lawful charges on statutory redemption. If the amount due was ascertainable from data available to complainant as readily as to defendant, and complainant...