Perry v. Kaspar

• Citation: 85 N.W. 22,113 Iowa 268
• Parties: PERRY v. KASPAR ET AL.
• Decision Date: 05 February 1901
• Court: United States State Supreme Court of Iowa

113 Iowa 268

85 N.W. 22

PERRY

v.KASPAR ET AL.

Supreme Court of Iowa.

Feb. 5, 1901.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

The facts to be considered on this appeal are as follows: In October, 1894, the plaintiff brought suit to foreclose a mortgage on certain land of which Agnes Simanek was then owner, Frank J. Kaspar and wife being the mortgagees. Agnes Simanek was joined as party defendant. Decree was entered by default, and there was an allowance of $120 as attorney's fees, the statutory affidavit not being filed with the original papers, but on the day the decree was entered. At the same term Agnes Simanek filed a motion to retax costs, and set aside the allowance of attorney's fees, on the ground that the affidavit was not properly filed, but no action was taken thereon at that term. The decree was entered January 22, 1895, and the motion to set aside the allowance of attorney's fees was filed March 26, 1895. The property was sold on execution February 25, 1895, to the plaintiff for the amount of the judgment, including costs and attorney's fees, and the payment therefor made, and the attorney's fees were paid to the attorney, James B. Meikle, who receipted for the same. In March, 1898, notice was served on the attorney, James B. Meikle, that the motion filed by Agnes Simanek would be called for hearing March 26, 1898. Resistance was made to the motion, and one or more affidavits were filed by each party, and on the hearing of the motion the allowance of attorney's fees was set aside for failure to file the statutory affidavit with the original papers. From the order of the court, the plaintiff appealed. Reversed.Duffy, Gaines & Kelby and John A. Storey, for appellant.

Mayne & Hazelton, for appellees.

McCLAIN, J.

There is no contention but that the allowance of the attorney's fee was improper. Wilkins v. Troutner, 66 Iowa, 557, 24 N. W. 37;Sweney v. Davidson, 68 Iowa, 386, 27 N. W. 278. The question is whether the defendant is entitled to relief in this proceeding. Appellant contends that this is a motion to retax the costs, and that such motion does not reach the error complained of. In this position we think appellant is correct. The statutory provision as to a motion to retax costs, which was in force at the time this motion was originally filed, was the same as that now found in Code, § 3864, as follows: “Any person aggrieved by the taxation of a bill of costs, may, upon application, have the same retaxed by the court, or by a referee appointed by the court in which the application or proceeding was had, and in such retaxation all errors shall be corrected.” The motion here contemplated is not a motion for a modification of a judgment or decree already rendered, but to direct the court's attention to the action of its officers, in pursuance of a judgment or decree, with a view of correcting any errors which they may have made. Fairbairn v. Dana, 68 Iowa, 230, 26 N. W. 90. While it is true that the attorney's fee allowed by the terms of the contract is to be taxed as costs, nevertheless the right to such fee is to be determined by the court in rendering judgment, and the right to attorney's fees in this particular was determined by the court in its original judgment. The propriety of the court's action could then have been tested, and any error in the judgment could have been corrected. It was subject to the same methods of review and correction as any other portion of that judgment. It was not necessary to wait for the action of the clerk in taxing the attorney's fees to determine whether any error was committed. Therefore it was incumbent on the defendant to proceed to question the correctness of the judgment, and he could not raise the question by a motion to retax the costs. The necessity of a motion to retax the costs before asking a review of the judgment in that respect on appeal is that, in an ordinary case of taxation of costs, the question to be raised by the motion has not otherwise been presented to the trial court, and no question not thus presented can be considered on appeal. But the question as to the right to attorney's fees in this case had been presented to the trial court. The judge had been called upon to determine whether there was such an affidavit in the case as entitled the plaintiff to have a judgment entered for the attorney's fees. In reaching his conclusion in this matter, the judge committed an error, due perhaps to inadvertence, but nevertheless an error which inhered in the judgment itself. Therefore the relief which the lower court gave was not proper relief, under a motion for a retaxation of costs. Ainley v. Insurance Co. (Iowa) 84 N. W. 504.

Appellee contends that, while this motion may have been improperly named, it really did ask relief to which appellee was entitled, and was properly sustained either as a motion for the correction of the record, under sections 243 and 244 of the present Code, or for the vacation or modification of the judgment, under Code, §§ 4091, 4093. The...