Ward v. Rees

• Decision Date: 25 May 1903
• Citation: 72 P. 581,11 Wyo. 459
• Parties: WARD v. REES
• Court: Wyoming Supreme Court

72 P. 581

11 Wyo. 459

WARD v. REES

Supreme Court of Wyoming

May 25, 1903

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

David Rees, against whom a judgment had been rendered by a justice of the peace, commenced this action in the District Court asking the aid of the court by injunction to restrain John Ward, the sheriff of the county, from levying an execution issued upon such judgment. The cause of complaint was that certain of the costs taxed for witness fees and mileage, and for the attendance of the justice, were illegal and not authorized by law. The petition was demurred to as not stating sufficient facts to constitute a cause of action. The demurrer was overruled, and for want of further pleading on the part of the defendant judgment was rendered against him for costs, and the temporary injunction which had been allowed was made permanent. Defendant prosecuted error.

Reversed.

J. H Ryckman, for plaintiff in error.

The defendant in error had a plain, speedy and adequate remedy at law, and equity will afford him no relief. If he was dissatisfied with the judgment for costs, he should have appealed to the District Court within fifteen days from the time the judgment was rendered against him, but he neither appealed, which is the proper method in most states, to correct a judgment for costs, nor did he adopt the practice in vogue in certain other states by moving to retax, either before or after the time for appeal had expired.

Costs are included in and constitute a part of the judgment, and hence, though ascertained and adjudged by the court, after an entry of judgment by the clerk has been made, yet the law considers such action of the court as having preceded the final judgment. (Empire, &c., Co. v. Bonanza, &c., Co., 67 Cal. 406; Burt v. Ambrose, 11 Ore., 26; Rosa v. Junkins, 31 Hun (N. Y.), 384.)

It is a rule to which there is no exception that errors or mistakes in the taxation of costs cannot be corrected in any collateral proceedings. (Mott v. State, 145 Ind. 353; Small v. Benfield, 66 N. H., 206; Stevensen v. Smith, 28 Cal. 102; Nicklin v. Hobin, 13 Ore., 406; Crosby v. Stephan, 97 N.Y. 609.)

Therefore, where a party has an adequate remedy by appeal, and through his own negligence this remedy is lost, he cannot obtain equitable relief by injunction against the judgment. (Howard v. Eddy, 56 Kan. 498; Adams v. Harrington, 114 Ind. 66; Houk v. Barthold, 73 Ind. 21; Caskey v. City, 78 Ind. 233; Sims v. City, 79 Ind. 446; City v. Smith, 83 Ind. 502; Cauldwell v. Curry, 93 Ind. 363; Johnson v. Reed, 57 P. 680; Daly v. Pennie, 86 Cal. 552; Bowman v. McGregor, 6 Wash., 118; R. Co. v. Birmingham T. Co., 25 So. 777; Phillips v. Watson, 63 Ia. 30; Hollenbeak v. McCoy, 59 P. 201; Quinn v. Wetherbee, 41 Cal. 247; Daly v. Pennie, 86 Cal. 552; Sunol v. Pieo, 6 Cal., 294; Story's Eq., Sec. 1572.)

No appearance for defendant in error.

CORN, CHIEF JUSTICE. KNIGHT, J., and POTTER, J., concur.

OPINION

CORN, CHIEF JUSTICE.

This was a suit brought to enjoin the levy of an execution. A temporary injunction was allowed, a demurrer to the petition was overruled and, the plaintiff in error refusing to plead further, there was a judgment by the District Court that the injunction be made perpetual. The original judgment upon which the execution issued was rendered by a justice of the peace and the complaint of the petition is that certain costs, taxed by the justice and included in the judgment, are illegal. The defendant in error tendered the principal amount of the judgment and the costs admitted by him to be legal and the injunction was allowed as to the remainder.

The demurrer should have been sustained. The error, if any, should have been brought to the attention of the justice by a motion to retax the costs and, if the party was dissatisfied with the ruling upon the motion, he had his right under the statute to take the matter before the District Court by appeal or by proceedings in error. The District Court, having the case before it, would then have retaxed the costs and corrected any errors found to exist. In the meantime a stay of execution could be had in the manner provided by statute, until the decision of the District Court was obtained. There was thus a complete and convenient remedy at law and no ground for the intervention of a court of equity by injunction. (Wills v. Goodbread, 1 Iredell Eq., 9; Mayor v. Cornell, 9 Hun 215; Allen v. Woodson, 60 Tex. 651; Miller v. Adams, 5 Ill. 195, 4 Scam. 195; Peoria R. R. Co. v. Bryant, 15 Ill. 438; Whitesides v. Rayle, 22 Tenn. 205, 3 Hum. 205; Ross v. McCarty, 22 Tenn. 169.) And the fact that the party aggrieved has lost his remedy by neglecting to prosecute his appeal does not entitle him to relief by injunction. (High Inj., 173.)

There is another slightly different view of the question which leads necessarily to the same conclusion and makes it clear that defendant in error was not entitled to the relief sought. It is evident that the petition for an injunction in this case is in substance merely a motion to retax the costs, and that the temporary injunction was a mere stay of the execution, pending an examination of the cost bill by the District Court. (Lockart v. Stucklen, 49 Tex. 765.) If the court obtained jurisdiction of the matter in this proceeding and decided that no more was legally due than had been tendered by defendant in error, the plain remedy would be to correct the amount stated in the execution. And the officer having the execution in his hands finding that it was fully paid by the tender, would have only one course to pursue; that is, to return the...