Ellison v. Stevenson
| Citation | 22 Ky. 271 |
| Parties | Ellison v. Stevenson. |
| Decision Date | 04 December 1827 |
| Court | Kentucky Court of Appeals |
Costs. Witnesses' Claims. Clerks. Custom. Practice. Deputies. Assistants. Jailors.
ERROR TO THE SCOTT CIRCUIT; JESSE BLEDSOE, JUDGE.
Dana for plaintiff.
Crittenden for defendant.
At June term, 1825, the plaintiff moved the court to correct the taxation of costs, made by the clerk in the allowances for attendance of witnesses in behalf of his adversary.
Taxation of costs for witnesses claims.
The objections to the allowances made by the clerk for witnesses are divided into three classes; those entered in the clerk's book by his deputies, Hawkins, Morgan, Bradford and Thomas; secondly, those entered by the clerk himself thirdly, the allowances for the witness Crawford.
As to the first class, it is objected, that the taking of the witnesses claims by those deputies, was irregular, and ought to be expunged, because a deputy clerk has no authority to take the claims of witnesses for their attendance, unless specially designated by the court for that purpose, and those deputies had not been so specially designated by the court.
Objected that the deputy clerk could not allow the claims of witnesses.
And as to first and second classes, it is objected that the claims of those witnesses were allowed, without requiring the witnesses to swear to the verity of their claims.
Objected the witnesses were not sworn.
As to the fact whether the witnesses were or were not sworn, the evidence of the clerks, leaves the matter in doubt; they can not say whether they were or were not sworn; for those claims were entered in the book of allowances, at June and September terms, 1821, and at March, June and September terms, 1822; and the clerks had no recollection as to the fact; but stated it was not then the practice to swear witnesses, who claimed for attendance, where the clerk knew they were subpoenaed and attended as claimed, unless they claimed for travelling from another county; the clerks all swore they believed the witnesses had been subpoenaed, and had attended; but that the practice of the office now was to swear the witnesses in all cases, to their claims; that this change had been made in consequence of a suggestion from the court at the last term, or the term before, to-wit, in 1825.
Evidence.
The third relates to the allowance and taxation of Crawford's attendances as a witness, because he was jailor of the county, and in that capacity was bound to attend the court.
Jailor's claim for attending as a witness, resisted.
The court certify that Crawford was jailor, and in that capacity, by himself or by his deputy, usually attended the court, but that he had a deputy who frequently attended.
This was the whole evidence; no suggestion being made, that in fact the witnesses had not been summoned, nor that they had not, in truth, attended, as allowed by the clerk in his taxation of costs.
The court, upon hearing the evidence, refused to alter the taxation of costs, and the plaintiff has brought up the questions to this court for revision.
From time immemorial, the taxation of costs has been confided to the ministerial officer of the court, the clerk or keeper of the records, who records the judgment and issues the execution. The court renders judgment for costs, but the amount of the costs does not appear in the face of the judgment; it is taxed by the officer of the court, and put into the execution, or noted at the foot of the record where a complete transcript is made. It would greatly retard the more important business of the court, to the delay of justice, and increase of expense, if the courts in every instance were to be consulted in making up the taxation of costs. The taxation and allowances of costs made by the clerk stands of course, unless an application is made to the court to correct an improper and unjust taxation. Public utility and true economy are best consulted by this practice. It would be unpardonable waste, if the courts were to stop the progress of the trial dockets, to hear witnesses claim attendance, and see the clerk tax the costs according to an order of continuance or judgment for costs. The supervising care and control of the court, to correct an excessive taxation and reduce it to the just standard of right, or to increase a diminished taxation, is all that justice requires.
It is the duty of the clerk, to tax and ascertain the amount of costs, for which judgment is rendered, subject to the revision of the court on the complaint of either party.
Whenever the court is applied to reduce a taxation made and allowed by the clerk, the question seems to be, whether the taxation is just or unjust, and not whether the clerk has arrived at a just conclusion for wrong reasons. If the clerk has arrived at a just conclusion as to the amount of costs, it would be strange if the court should reverse the just result, because the clerk had arrived at it by a compendious process. This court has again and again refused to reverse a right judgment of the circuit court because that court gave wrong reasons for the judgment. So in reviewing the taxation of costs by the clerk, the question would seem to be, is the taxation more or less than it should be? Not whether the clerk has or not, come at the proper amount by a saving of labor in the computation.
In deciding on a motion to correct the taxation of costs, the question is not how the clerk arrived at the result, as by himself, or deputy or by swearing the witness, or not, but whether the conclusion be correct.
In the present case it was not pretended before the court below, that the witnesses were not in attendance under a subpoena, nor that too much has been taxed for their attendance, or travelling. But it is said the clerk has committed a slip in allowing these claims, and taxing them in the bill of costs, in not swearing the witnesses himself, or in doing it by deputy, or in not swearing them at all, to the justice of their claims. This objection is predicated upon the statute in such cases provided, (1 Digest, 586).
The statute fixes the rate of daily attendance of witnesses, and the rate of allowances for travelling ??o and from the court where witnesses are summoned out of another county, and also allows ferriages.
Statute concerning the compensation of witnesses and allowance of their claims.
It declares the clerk's certificate for all allowances to witnesses shall have the same force as officers' fee bills, that is, the force of judgments.
The statute then enacts:
It is clear from this statute, that the taxation of costs of witnesses, is confided to the clerk. The immemorial usage upon that subject is not abrogated but confirmed. The allowance by the clerk has the force of a judgment, subject however, (not by any express provision of this statute, but by the power and usage of courts), to the supervising control of the court over the acts of its officer. It is argued that the clerk has no power to make the allowance unless the witnesses are first sworn. We think otherwise. The power and authority of the clerk to make the allowance for witnesses and to tax such allowance in the bill of costs against the adverse party, who is ordered to pay costs, is complete by immemorial usage, recognized and sanctioned by the statute, instead of being repealed or abrogated. The statute is but directory to the clerk. His power does not depend upon the witnesses taking the oath, it commences beforehand. He has power to hear and state the claim, and to swear the witnesses to the claim. He holds the subpoena and knows the progress of the cause; he can and ought to correct the claim made by the witness, where, from his own knowledge, the witness claims too much, even should the witness swear to it. However, prudent it may be for the clerk in all cases to swear the witnesses to their claims; yet this court is not prepared to say that an allowance made by the clerk, upon his own knowledge of the truth and justice of the claim made by the witness, shall be expunged from the bill of costs, merely because the clerk neglected...
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Naill v. State
...than the word "deputy," including those who aid, whether sworn or not sworn, while "deputy" implies only the sworn class. See Ellison v. Stevenson, 22 Ky. 271. There seems to be a distinction recognized by all authorities, and it will be found in every standard dictionary, between the word ......