Shoemaker v. Smith

• Decision Date: 23 January 1885
• Docket Number: 11,284
• Citation: 100 Ind. 40
• Parties: Shoemaker v. Smith
• Court: Indiana Supreme Court

100 Ind. 40

Shoemaker v. Smith

No. 11,284

Supreme Court of Indiana

January 23, 1885

From the Monroe Circuit Court.

The judgment is affirmed, with costs.

J. W Buskirk and H. C. Duncan, for appellant.

J. H Louden and R. W. Miers, for appellee.

OPINION

Howk J.

After this cause was at issue, it was submitted to the court for trial, and, at the request of the parties, the court made a special finding of facts and stated its conclusions of law thereon. Over the exceptions of the appellant, the plaintiff below, to the court's conclusions of law, judgment was rendered in accordance therewith.

In this court the appellant has assigned error which calls in question the correctness of the trial court's conclusions of law upon the facts specially found.

The facts found by the court were, substantially, as follows: On the 23d day of August, 1878, the appellant filed his complaint in the court below alleging the existence of a partnership with the appellee, and praying for the dissolution thereof, with other proper relief. At the next term of the court appellee appeared to that action, and before the cause was at issue a day was fixed by the court for the trial thereof at that term, and the appellant subpoenaed and had in attendance certain witnesses to prove the issues in his behalf, whose total attendance at that term amounted to twenty-nine days, and whose total fees and mileage amounted to the sum of $ 39.25. The cause was not tried at that term, but it was continued generally. At the January term, 1879, of the court, on January 15th, 1879, the appellee filed an answer and cross complaint, and a demurrer to such cross complaint was overruled. On the 24th day of that term appellant's motion for a change of judge was overruled, and on the 26th day of the term, over appellant's objections, the court appointed a receiver for the firm, from which order the appellant prosecuted an appeal to the Supreme Court. At that term the cause was set down for trial on a day of the term fixed by the court, and the appellant subpoenaed twenty-two witnesses, who were in attendance, and whose fees and mileage amounted to the sum of $ 236.60. All of these witnesses were in attendance on the 24th day of the term, when the motion for the change of judge was filed, and on the 25th and 26th days of the term, on which latter day the action of the court appointing a receiver was had. After the appointment of the receiver and the appeal therefrom, and pending such appeal, the cause was continued generally from term to term until the September term, 1881, of the court.

At the May term, 1881, of the Supreme Court, the aforesaid appeal was decided, and it was adjudged by that court "that the judgment be and is in all things reversed, at the costs of the appellee, and the cause is remanded with instructions to sustain the demurrer to the cross complaint and the motion to change the venue." Shoemaker v. Smith, 74 Ind. 71. After the cause was remanded, the opinion was entered on the order-book of the court below, and judgment was there rendered in accordance with the mandate of the Supreme Court. The cause was then continued from term to term until the adjourned April term, 1882, when a trial was had, and a judgment was rendered in appellee's favor for $ 500, and that each party pay the costs by him made except as to the costs theretofore already adjudged. Thereafter the parties each paid the costs made by himself, except as to the costs of appellant's witnesses at the September term, 1878, and the January term, 1879, with the clerk's costs for issuing subpoenas for the same at such terms, and the sheriff's costs for serving such subpoenas. Such unpaid clerk's costs were $ 5, and such unpaid sheriff's costs amounted to $ 20. The clerk divided the costs of the continuances after and including the January term, 1879, when the change of judge was applied for, and up to the term when the opinion of the Supreme Court was returned, equally between the parties, and each of them paid the costs of such continuances taxed against him. The judgment recovered by appellee against appellant was still unpaid, except the sum of $ 162.85 paid January 9th, 1883. The appellee had paid the costs of his own witnesses, but had not paid to or for the appellant any of his costs for bringing his witnesses into court, or any of the fees of such witnesses. Appellee had paid all the clerk's costs incurred at the January term, 1879, after the overruling of the motion for a change of judge.

Upon the foregoing facts the court stated its conclusions of law, substantially, as follows:

1. Under the judgment of the Supreme Court, awarding costs to appellant on the judgment of reversal, the appellant was entitled to have taxed against the appellee, and to recover as a part of said judgment, the fees of appellant's witnesses, who were in attendance on the 25th and 26th days of the January term, 1879, amounting to $ 55 in all.

2. Under said judgment the appellant was not entitled to have taxed against appellee, or to recover of him, any ...