Louisville & N. R. Co. v. Boswell
| Decision Date | 05 May 1900 |
| Citation | 58 S.W. 117 |
| Parties | LOUISVILLE & N. R. CO. v. BOSWELL. |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Shelby county; L. H. Estes, Judge.
Action by the Louisville & Nashville Railroad Company against James Fitzgibbons and others. From an order denying a motion for retaxation of costs because of allowance to L. E. Boswell, clerk of court, plaintiff appeals. Reversed.
John P. Houston, for appellant. L. B. McFarland and Jas. H. Malone, for appellee.
This record presents a question of taxation of costs. In the case of the Louisville & Nashville Railroad Company against James Fitzgibbons et al., land was condemned for the company's right of way, and the value of the land was assessed at $2,750, which sum was paid into the hands of the clerk of the circuit court. The circuit judge allowed the clerk a commission of 1 per cent. on said amount, amounting to the sum of $27.50. The company moved to retax said costs, and that said commission be disallowed, but the motion was overruled. The company appealed, and assigns this action of the court as error.
It is said the court allowed the commission under section 6391, Shannon's Code, viz.: "The court may make allowances to the clerk, or other person acting as trustee, receiver or commissioner under the appointment of the court, when no fees are fixed by law." In this case the clerk was not acting in the capacity of trustee, receiver, or commissioner, under the appointment of the court, when he received this money, but he received it as clerk. Section 1859, Id., under the head of "Condemnation Proceedings," provides, viz.: "If no objection is made to the report it is confirmed by the court and the land decreed to the petitioner upon payment to the defendants or to the clerk for their use of the damages assessed." So that it is obvious that this money was received by the defendant in error in his capacity as clerk. The contention of defendant in error that the payment to him of the money for the use of the defendant makes him trustee or receiver, without formal appointment by the court so as to entitle him to the commission, is unsound. But it is insisted that, independent of the foregoing statute, the allowance of said commission was within the discretion of the court, under section 4962, Id., viz.: "And if any case shall occur not directly or by fair implication embraced in the express provisions of the law the court may make such disposition of the costs as in its sound discretion...
To continue reading
Request your trial
-
American Const. Fire Assur. Co. v. Robertson
...208 Mo. App. 447, 237 S.W. 173; State ex rel. City of St. Louis v. Thornton, 8 Mo. App. 27; Latham v. Pagan, 51 N.C. 62; Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117. He received such funds by virtue of his office. Saulsbury v. Lady Ensley Coal, Iron & Railroad Co., 110 Ala. 585, 20 So. ......
-
Owen v. Stanley
...will be considered costs and whether or not to award them to a litigant depends upon legislative enactment. Railroad v. Boswell, 104 Tenn. 529, 532, 58 S.W. 117, 118 (1900); Person v. Fletcher, 582 S.W.2d 765, 767 There is no statute in this State requiring the losing party to pay the preva......
-
Warren v. Scott
...authority, in a condemnation case, for the fact that the clerk is not a trustee of the funds paid into court. Louisville & N.R. Co. v. Boswell, 104 Tenn. 529, 58 S.W. 117 (1900). For the purposes of this case, however, we do not think it matters. We will assume that the defendant was acting......
-
Person v. Fletcher
...only such items of expense as are taxable by virtue of legislative enactment. The Supreme Court in the case of Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117 (1900), overruling an effort to include a fee as costs not authorized by statute and quoting its earlier case of Mooneys v. The Stat......