Levi v. Karrick

• Decision Date: 05 January 1863
• Citation: 15 Iowa 444
• Parties: LEVI v. KARRICK et al
• Court: Iowa Supreme Court

15 Iowa 444

LEVI v. KARRICK et al

Supreme Court of Iowa, Des Moines

January 5, 1863

Appeal from Dubuque District Court.

MOTION in the court below to retax costs after final decree in the Supreme Court. The motion was overruled, and the mover appeals.

Affirmed.

T. M Monroe for the appellant.

John L Harvey for the appellee.

The appeal brought the whole cause to the Supreme Court, and the District Court had no jurisdiction. McGlaughlin v O'Rourke, 12 Iowa 459; Pierson v. Wilson et al., 2 Id, 20 ; Stockwell v. David, 1 G. Greene, 115.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. ^[*]

OPINION

LOWE, J.

This is an appeal from an order overruling a motion to retax the costs in the above entitled cause, made by one of the defendants (G. W. Jones), under the following circumstances : The proceeding was one in chancery, touching the settlement of a complicated partnership. During the pendency thereof, it was referred to a master, J. H. O'Neil, Esq., whose report was made in the premises, with his fees or charges indorsed thereon, and the same was confirmed, and a judgment entered accordingly. From this judgment the whole proceedings were removed into this Court, by an appeal. Without remanding the same, or any part thereof, to the court below, a final decree was entered in this Court between the parties, and the costs were ordered to be taxed against the defendant, G. W. Jones.

For these costs, including the master's fees, an execution issued from this Court to the Sheriff of Dubuque County. At the February Term, 1863, of the District Court of said county, the defendant moved that court to retax the costs which had been taxed in this court, and which were embraced as we understand it, in the process of execution which had issued from this Court. The overruling of this motion must be upheld as founded in reason, law, a just practice, and the necessity of the case. That a chancery proceeding, when appealed from, after a final decree, can be pending in this and the District Court, at the same point of time, subject alike to the control and action of either court, is against the whole theory of our system of jurisprudence. The simple matter of fact is, that when an appeal is taken, all power...