Peyton v. Peyton

• Decision Date: 04 August 1939
• Citation: 8 A.2d 89,23 Del.Ch. 365
• Court: Supreme Court of Delaware
• Parties: BERNARD PEYTON, Trustee under Declaration of Trust, dated August 21, 1936, Complainant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, ANNE DUPONT PEYTON, PEYTON-DUPONT SECURITIES COMPANY, a corporation organized and existing under the Laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, Defendants Below, Appellees. BERNARD PEYTON, Trustee under the Declaration of Trust, dated August 21, 1936, Cross-Defendant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, deceased, and THE STANDARD STOKER COMPANY, INC., a corporation of the State of Delaware (formerly PEYTON-DUPONT SECURITIES COMPANY), Cross-Complainants Below, Appellees. BERNARD PEYTON, Complainant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, ANNE DUPONT PEYTON, PEYTON-DUPONT, INC., a corporation organized and existing under the Laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, Defendants Below, Appellees. BERNARD PEYTON, Cross-Defendant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, and HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of William C. Peyton, deceased, Cross-Complainants Below, Appellees, and PEYTON-DUPONT, INC., a corporation existing under the Laws of the State of Delaware, Cross-Defendant Below, Appellee

8 A.2d 89

23 Del.Ch. 365

BERNARD PEYTON, Trustee under Declaration of Trust, dated August 21, 1936, Complainant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, ANNE DUPONT PEYTON, PEYTON-DUPONT SECURITIES COMPANY, a corporation organized and existing under the Laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, Defendants Below, Appellees.

BERNARD PEYTON, Trustee under the Declaration of Trust, dated August 21, 1936, Cross-Defendant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, deceased, and THE STANDARD STOKER COMPANY, INC., a corporation of the State of Delaware (formerly PEYTON-DUPONT SECURITIES COMPANY), Cross-Complainants Below, Appellees.

BERNARD PEYTON, Complainant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, ANNE DUPONT PEYTON, PEYTON-DUPONT, INC., a corporation organized and existing under the Laws of the State of Delaware, HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of WILLIAM C. PEYTON, Defendants Below, Appellees.

BERNARD PEYTON, Cross-Defendant Below, Appellant, v. WILLIAM C. PEYTON CORPORATION, a corporation organized and existing under the Laws of the State of Delaware, and HENRY H. WEHRHANE, CLIFTON V. EDWARDS, NEVIL FORD, E. ARCHER TURNER and ROBERT E. COULSON, Executors and Trustees under the Will of William C. Peyton, deceased, Cross-Complainants Below, Appellees, and PEYTON-DUPONT, INC., a corporation existing under the Laws of the State of Delaware, Cross-Defendant Below, Appellee

Supreme Court of Delaware

August 4, 1939

MOTION BY APPELLANT TO TAX IN HIS FAVOR CERTAIN COSTS. On June 20 1939, this court reversed the decrees of the court below, and directed that the cross-bills be dismissed and that the relief prayed for in the original bills of complaint be granted. Ante p. 321, 7 A.2d 737.

The Register in Chancery certified to the court, in accordance with Rule 13 that the expense of making up and certifying the record in the first stated case was $ 151.20, and in the second case $ 41.65. A single consolidated record was printed for use in both cases, the cost of printing of which was $ 991.02. There were other costs aggregating $ 25.66 in each case.

The appellant moved that the costs be taxed in his favor and against the appellees, other than Anne duPont Peyton, as follows: In the first stated case, one-half of the costs of printing the record $ 495.51, the expense of making up and certifying the record $ 151.20, and other costs $ 25.66 aggregating $ 672.37; in the second case, one-half of the costs of printing the record $ 495.51, the expense of making up and certifying the record $ 41.65, and other costs, $ 25.66, aggregating $ 562.82.

The appellees contended that the amount paid by the appellant for printing the record and for preparing and certifying transcript of the record should not be included as a part of the costs, although it was conceded that the cost thereof was reasonable.

Section 4902, Revised Code, 1935, provides as follows:

"In a Court of law, whether of original jurisdiction, or of error, upon a discontinuance, non pros, nolle prosequi retraxit, or non-suit, there shall be judgment for costs for the defendant; and generally a party for whom final judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall recover, against the adverse party, costs of suit, to be awarded by the Court."

Section 5348 contains a schedule of fees payable to the Clerk of the Supreme Court, for issuing writs, entering appeals from Chancery, filing and safe keeping records, continuances entering decrees, certificates and copying and for attendance upon the Supreme Court.

By Section 4240, the Chancellor, for the Court of Chancery, and a majority of the other State Judges, for the Supreme Court, are empowered to make and ordain regulations for the payment of costs, which rules, when so made and ordained, shall supersede all statutory provisions inconsistent therewith.

Supreme Court Rule 7, requires the Prothontary, Register or Clerk of the court below, upon a writ of error, to transmit to the Supreme Court within fifteen days from the service of the writ a copy of the record of the cause in the court below; and to certify under his hand and seal of office the correctness of the record.

By Rule 8 it is provided that the officers named in Rule 7 shall not be required to make up and certify the record until the estimated cost thereof shall have been paid or secured.

Rule 9 has to do with matters to be excluded from the transcript of the record of a cause in the Court of Chancery, such as subpoenas and other process for appearance, orders and certificates of publication, other orders, bonds, affidavits, and other collateral matters. However, it is provided that any party to the appeal shall have the right to direct that any particular part of the proceedings which otherwise would be omitted to be incorporated in the transcript, and it is made the duty of the Register to state at whose instance the matter is inserted in order that costs may be awarded as the matter so directed to be incorporated may be deemed material or not by the Supreme Court.

Rule 10 is concerned with documentary evidence in Chancery causes. It directs that such evidence shall not be set out in full, the purport and substance only to be stated, except where some question arises upon the construction and validity thereof. Any party to the appeal has the right to direct that any or all of such documentary proof be inserted at length, and it is likewise made the duty of the Register to state at whose instance the same is so inserted, in order that costs may be awarded as the matter so incorporated may or may not be deemed proper to have been set out in full.

Rule 11 provides that in making up the transcript of the record in causes in Chancery, all of the testimony shall be included, unless otherwise agreed in writing by counsel for both parties; and counsel for either party may, at any time before the record is made up by the Register, require in writing the omission of any portion of the testimony, or any exhibits; and the cost of certifying and printing such testimony or exhibits may be imposed by the Supreme Court on the other party as part of the costs in the cause, according as it may seem just and equitable.

By Rule 13 it is provided that the expense of making up and certifying the record shall be certified to the Supreme Court by the Prothonotary, Register or Clerk; and that when any direction is given to the Register to omit matter from the record as provided by Rules 9, 10 and 11, he shall also certify the cost of certifying such matter.

Rule 16 provides that in cases of cross-appeals, or of more than one appeal entered in the same case, there shall be but one transcript of the record transmitted; and that the Supreme Court shall have the power to award costs, including the cost of printing and filing the record, to either of the parties in its discretion, or the costs may be apportioned as the court may deem just.

Rule 59 provides that in case of reversal, affirmance or dismissal with costs the amount paid for printing the record may be taxed as part of the costs.

Ordered that in each of the causes the one-half part of the expense of printing the consolidated record, the Register's charge in each case for making up and certifying the record, and other costs, amounting in each case, to the sum of $ 25.66, be included as costs chargeable against and payable by the appellees except Anne duPont Peyton, she being in no sense an adverse party against whom costs should be taxed.

Hugh M. Morris and S. Samuel Arsht, for appellant.

Ward & Gray and David F. Anderson, for appellees.

LAYTON, C. J., RICHARDS, RODNEY, SPEAKMAN, and TERRY, JJ., sitting.

OPINION

LAYTON, Chief Justice.

The question is whether the expense of the preparation and certification of the records in the causes and of the printing of the required copies of the consolidated record should be taxed as a part of the costs against the appellees.

Costs are allowances in the nature of incidental damages awarded by law to reimburse the prevailing party for expenses necessarily incurred in the assertion of his rights in court. At the common law costs were unknown. The right to recover them depends on statutory authority, express or implied. The right, therefore, to recover as costs the expense of having made up and certified a transcript of the record, and of printing papers to be used on appeal exists only when authorized by statute or rule of court enacted under authority of law. 15 C. J. 264, 270; 14 Am. Jur. 65, 66.

The appellees assert that there is no statutory direction that the expense of having made up and certified by the Register in Chancery a transcript of the records and of having the record printed be taxed as costs against them. It is submitted that the phrase, "costs of suit", as found in Section 4902 of the Revised Code of 1935, must refer only to the schedule of fees, contained in Section 5348, payable to the Clerk of the Supreme Court. Such...