Ellison v. Ward

• Decision Date: 13 March 1939
• Docket Number: Gen. No. 31.
• Citation: 20 N.E.2d 888,300 Ill.App. 27
• Parties: ELLISON ET AL. v. WARD ET AL.
• Court: United States Appellate Court of Illinois

300 Ill.App. 27

20 N.E.2d 888

ELLISON ET AL.

v.WARD ET AL.

Gen. No. 31.

Appellate Court of Illinois, Fourth District.

March 13, 1939.

Appeal from Circuit Court, Franklin County; W. Joe Hill and Roy E. Pearce, Judges.

Suit by John Darwin Ellison, a minor, by his mother and next friend, Nora Newton, and others, against Terzie K. Ward, trustee of the estate of Robert R. Ward, deceased, and others, wherein an appeal was taken by the complainants and wherein the appellee, subsequent to an order of reversal, moved to redocket the case and retax the costs.

Item of costs objected to expunged from records of the Appellate Court as an item of costs, and the fee bill quashed. D. F. Moore, of Benton, and Henry T. Martin, of Chicago, for appellants.

Moses Pulverman, of Benton, for appellees.

PER CURIAM.

At the 1938 February Term of this court an order was entered in this case reversing and remanding with directions. Ellison v. Ward, 294 Ill.App. 197, 13 N.E.2d 649. There was no order in reference to the taxing of costs. Subsequent thereto the clerk of this court issued a remanding order and fee bill. The fee bill contained the following items of costs: (a) Filing fee]] $20. (b) Transcript of the record]]$133.50. (c) Abstract of the record]] $122.50. (d) Remanding order]]$2.50. At the May term of this court appellee on the appeal moved to re]docket the case and re]tax the costs. The item of costs objected to is item (b) “Transcript of the record]]$133.50.” The other items are conceded to be correct.

Appellants object to re]docketing the case and re]taxing the costs on the ground that it was filed too late. Section 26, Chapter 33, Ill.Rev.Stat., provides that any party who feels himself aggrieved by the taxation of any bill of costs by the clerk may apply to the court where the proceeding is pending to have the same re]taxed according to law. In Chicago City Ry. Co. v. Burke, 102 Ill.App. 661, it was held that a motion to re]tax costs could be made upon notice after the close of the term which the judgment was entered. To the same effect is In re Dunning, 213 Ill.App. 602;Tanton v. Keller, 78 Ill.App. 31; 15 Corpus Juris 188. The question was not raised in Terminal R. Ass'n v. Larkins, 127 Ill.App. 80, but in that case this court permitted the re]taxing of costs where the application was made at a subsequent term. Appellee's motion was made in apt time.

Section 25, Chapter 33, provides: “The clerk of any court in this state is hereby authorized and required to tax and subscribe all bills of costs arising in any cause or proceeding instituted in which he is clerk, agreeably to the rates which shall, for the time being, be allowed or specified by law; and shall in no case allow any item or charge unless he shall be satisfied that the service for which it was made was actually performed in the cause.”

[2]4] The common law does not authorize taxing or allowing costs in any case and hence in this state judgment for costs must rest upon statutes. Where the legislature has not authorized them they should not be awarded. It is also the general rule that statutes which impose costs are to be strictly construed. Gehrke v. Gehrke, 190 Ill. 166, 60 N.E. 59;Galpin v. City of Chicago, 249 Ill. 554, 94 N.E. 961. Nothing can be allowed as costs, either by the clerk or by the court except the items declared by the statute to be such, Roby v. Chicago Title & Trust Co., 194 Ill. 228, 62 N.E. 544.

Section 31, Chapter 53, provides that the fees of the clerk of the circuit court in counties of the first and second class shall be paid in advance and that for each record of proceedings and judgment or decree whether on appeal, error or change of venue certified copies of orders and decrees and all other instruments, the fee shall be .20¢ for each 100 words.

Section 81, Chapter 53, provides that in all cases when any party desires to take an appeal or sue out a writ of error from any judgment or decree of any court of record, and shall present to the clerk a fair...