Walton v. Taylor

• Decision Date: 06 March 1911
• Citation: 79 A. 437,78 N.J.E. 266
• Parties: WALTON v. TAYLOR.
• Court: New Jersey Supreme Court

79 A. 437

78 N.J.E. 266

WALTON

v. TAYLOR.

Court of Errors and Appeals of New Jersey.

March 6, 1911.

Syllabus by the Court.

Appeal from Court of Chancery; Learning, Vice Chancellor.

Bill by James F. Walton against Alfred Taylor. Decree for complainant, and defendant appeals. Affirmed.

E. A. Armstrong and Herbert A. Drake, for appellant.

French & Richards, for respondent.

GARRISON, J. Upon the merits, this appeal is governed by our decision in the case of the same complainant against American Baptist Publication Society (79 Atl. 435). The facts are similar, excepting that in the present case the service of the notice to redeem is not controverted.

The defendant below was, however, an executor, and the decree orders that he pay complainant's costs, and, as to this portion of the decree, the appellant contends that it is erroneous because he was defending a right that accrued to his decedent in her lifetime. For his immunity from costs in such a case appellant cites Kinney v. Central Railroad Company, 34 N. J. Law, 273, and Bell v. Samuels, 60 N. J. Law, 370, 37 Atl. 613, both of which were cases at law, and hence under a statute (Practice Act) which does not apply to the Court of Chancery at all or to unsuccessful defendants even in a court of law.

There are, however, equity cases that might have been cited, which show the existence in the Court of Chancery of a fairly well-defined rule of practice respecting costs against personal representatives somewhat analogous to the statutory rule that arbitrarily controls the courts of law. Thus Chief Justice Green, sitting for the Chancellor, in the case of Gifford v. Thorn, 9 N. J. Eq. 702, said: "The general rule in equity (as well as at law) is that persons suing in autre droit are not responsible for costs. An executor or administrator, complainant in equity, will not be ordered to pay costs unless the suit be clearly groundless or vexatious."

This statement lacks the precision that ordinarily characterizes the language of this jurist, and would be actually misleading if it were not that the case of Getman v. Beardsley, 2 Johns. Ch. (N. Y.) 274, which is cited as supporting it, states the correct rule. This is what Chancellor Kent said in that case: "Ordinarily executors do not pay costs. * * * They are not supposed to know as plaintiffs the imbecility of their own suit. This is the reason of the rule at law. But in this court where the costs are discretionary they seem to depend more upon the particular circumstances of each case." This gives to the rule of practice its proper force. That such and none other is its status is shown by Chancellor Zabriskie in Shepherd v. McClain, 18 N. J. Eq. 128: "In this court costs by statute are in the discretion of the court. In general that discretion is exercised according to rules that have been fixed by practice. Courts of law by statute cannot award costs against executors and administrators when plaintiffs, but must if they are unsuccessful defendants. Courts of equity are not within that statute, and have not adopted it in practice. It is an arbitrary rule, and, if this court adopt it, it cannot award costs as the act regulating its practice requires; i. e., according to its discretion." This places the matter precisely upon its proper footing, and is amongst other things a demonstration that, whatever may be the force accorded by the Court of Chancery to rules adopted by it in the exercise of a discretion that by statute it is required to exercise, a departure from such rules, unless it amounts to an abuse of such discretion, is not ipso facto ground for reversal upon appeal. The statute to which Chancellor Zakriskie refers by which costs in equity are in the discretion of the Court of Chancery, excepting where otherwise directed by the Chancery act or some other law, which is now section 84 of the act of 1902 (P. L. 538), is a very ancient one, having...