Wyoming Central Irr. Co v. LaPorte

• Decision Date: 29 March 1920
• Docket Number: 943
• Citation: 188 P. 360,26 Wyo. 522
• Parties: WYOMING CENTRAL IRR. CO v. LaPORTE
• Court: Wyoming Supreme Court

188 P. 360

26 Wyo. 522

WYOMING CENTRAL IRR. CO v. LaPORTE

No. 943

Supreme Court of Wyoming

March 29, 1920

ERROR to the District Court, Fremont County; HON. CHAS.E. WINTER Judge.

Action by Nina A. LaPorte, upon a cost bond, against the Wyoming Central Irrigation Co. and the National Surety Co. There was a judgment for plaintiff and defendants bring error.

Judgment modified and remanded.

P. B Coolidge and Edward H. Stearns, for plaintiff in error.

A judgment creditor is not entitled to interest on that part of his judgment which covers the costs (O'Donnell v Co., 48 N.W. 880; McManus v. Burrows, 177 S.W. 671; Baum v. Reed, 74 Pa. 320; Ashworth v. Trammell, 47 S.E. 1011; De Lizardi v. Hardaway, 8 Rob. (La.) 20; Hill v. White, 1 N.J. Eq. 435; McCausland v. Bell, 9 Serg. & R. 388; Parrott v. Thompson, 19 Wkly. Notes Cas. 548; Miller v. Hottenstein, 1 Woodw. 236; Ghent v. Boyd, 43 S.W. 891; People's Bank v. Ins. Co., 76 F. 548). Even though the allowance of interest upon judgments generally is provided by statute (Rogers v. Burns, 27 Pa. St. 525; Gatewood v. Palmer, 10 Humphr. Tenn. 466). There was no evidence that defendant had paid the costs but showing that she had merely incurred them; interest is not recoverable on a bond in excess of penalty (People's Bank v. Campan, 82 N.W. 803; Fraser v. Little, 13 Mich. 195; St. Louis Bd. of Educ. v. Co., 82 S.W. 70; State v. Sandusky, 46 Mo. 377; Farrar v. Christy, 24 Mo. 453; Co. v. Seago, 38 S.E. 805; Warden v. Neilson, 5 N.C. 275; Stroble v. Large, 14 S. C. L. 112; Rhea v. McCorkle, 11 Heisk (Tenn.) 415; State v. Blakemore, 7 Heisk 638; Louisville Elec. Co. v. Co., 148 S.W. 671). The sheriff is not entitled to commission on an execution sale, where the property is bid in by the judgment debtor (Berry v. Kiefer, 133 P. 1126; Soderberg v. King County, 45 P. 785; Peery v. Wright, 45 P. 46, and cases there cited). Sheriff's fees are taxable only in accordance with some statute (Smith v. Williamson, 11 N. J. Law 313; Grofut v. Brandt, 58 N.Y. 106; O'Connor v. O'Connor, 47 N. Y. Super. 498; Biggerstaff v. Cox, 46 N.C. 536; Spencer v. Peterson, 68 P. 519; Day v. Rutledge, 12 Man. 451; Hudson v. Co., 68 N.Y.S. 28; Eagan v. Finney, 72 P. 133; Meree v. Beilfeld, 194 Ill.App. 364). A sheriff is allowed $ 1.50 for advertising property for sale (42 N.J.L. 211). Costs incurred in execution proceedings are not recoverable against judgment debtor unless taxed and approved by court order (Hawkins v. Mumford, 5 Denio 355; Gerard v. Caruolo, 61 A. 599; Gardner v. Brown, 22 Ind. 447; Beeman & Cashin Co. v. Sorenson, 15 Wyo. 450; 89 P. 745; Fletcher v. Norrell, 44 N.W. 133). Sheriff is without authority to tax costs; only the court where judgment is entered may issue execution (1 Freeman Ex. 13); where a transcript is filed in another county under a statute the purpose being to make the judgment a lien, execution issued out of that county is void (Seaton v. Hamilton, 10 Ia. 394; Furman v. Dewell, 35 Ia. 170; Shattuck v. Cox, 97 Ind. 242; Bostwick v. Benedict, 4 S.D. 414; Williamette Co. v. Hendrix, 28 Ore. 485; Lovelady v. Burgess, 32 Ore. 418; 52 P. 25; Bank v. Miller, 40 So. 513). Proceeds of an execution sale must first be credited to costs, and secondly upon the amount of the judgment (Baldwin v. Hatch, 54 Me. 167; Dean v. Baily, 12 Vt. 142; Beeman v. Sorenson, 15 Wyo. 450; 89 P. 745; McNeil v. Bean, 32 Vt. 429). The cost bond judgment covered costs in favor of defendant on her cross-petition. Plaintiff prevailed in the action in which the bond was given so that no recovery should be allowed on the bond (Hunter v. Robertson, 37 So. 771; Cook v. Dennis, 52 So. 560; Gilly v. Hirsh, 42 So. 422, 20 L. R. A. N. S. 972; Boothe v. Cowan, 5 Sneed Tenn. 354; Ontario Co. v. Co., 17 Ont. Pr. 156; Powell v. Montgomery, 8 Sask. L. 224; Shrapnell v. Long, 20 Q. B. D. 334). Sureties are only chargeable according to the strict terms of the bond (Robinson v. Epping, 4 So. 812; Ovington v. Smith, 78 Ill. 250; Field v. Rawlings, 6 Ill. 581; Butte v. Bennetts, 149 P. 92; Lang v. Pike, 27 Ohio St. 498; Co. v. Louderbach, 69 A. 673, 16 L. R. A. N. S. 775). Action on the cost bond was prematurely brought, since the main action is pending on appeal (Curtiss v. Beardsley, 15 Conn. 518). Action on a judgment should not be maintained in the absence of some special and adequate cause therefor (Moss v. Shannon, 1 Nilt. (N. Y.) 175; Goodrich v. Barney, 2 Vt. 422; Beckham's Succession, 16 La. Ann. 352; Wood v. Newberry, 48 Mo. 322; Keeler v. King, 1 Barb. (N. Y.) 390; Pitzer v. Russel, 4 Ore. 124; Ligon v. McNeil, 6 Rich. (S. C.) 377; McClenahan v. Cotten, 83 N.C. 332; Cole v. Mitchell (Wisc.), 45 N.W. 948).

No brief was filed for defendant in error.

BLYDENBURGH, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

This case was brought on an undertaking given to secure costs on a change of venue in the case of Wyoming Central Irrigation Company, a corporation, plaintiff, v. Nina A. LaPorte, William M. Mooney, C. P. Twitchell and Riverton State Bank, a corporation, in accordance with the provisions of section 5144 of the Wyoming Compiled Statutes of 1910. A change of venue was had in said original action to Natrona County and the trial there resulted in a judgment for the defendant, Nina A. LaPorte, the plaintiff in this case, against the plaintiff in that case, The Wyoming Central Irrigation Company, one of the defendants in this case, and for the costs taxed at $ 131.60. A transcript of this judgment was filed in the office of the Clerk of the District Court of Fremont County under the provisions of Chapter 22 of the Session Laws of 1911 and Nina A. LaPorte caused an execution to be issued by the Clerk of the District Court of said Fremont county upon said transcript and placed in the hands of the sheriff of Fremont county for service. That said sheriff levied upon certain interests of the Wyoming Central Irrigation Company in a certain ditch and water right, advertised it for sale in the usual manner and sold the same for $ 6,668 to Nina A. LaPorte, the judgment and execution creditor, and filed the return of the execution with the Clerk of Court of Fremont County, showing his costs to be: To the Riverton Review, for publishing notice of sale, $ 319.58; sheriff's costs and commissions, $ 93.93; a total of $ 413.51. This suit on the cost bond is brought to recover the $ 131.60 costs taxed in the original judgment in Natrona county and interest thereon from Oct. 30, 1914, the date of said judgment, at 8% per annum, and for the balance of the $ 500 penalty of the undertaking, to-wit: $ 369.40, being a part of the costs incurred on the execution in Fremont county with 8 per cent. per annum from April 28, 1916, the date of the sale of the ditch under the execution. The case was tried by the court without a jury and judgment rendered in favor of the plaintiff and against the defendants for the sum of $ 585.10, and $ 6.40 costs, to which the defendants excepted, filed a motion for a new trial, which was overruled, an exception taken, and the case is brought here on error.

The petition in error contains eleven different specifications of error, which as argued in the brief may be stated as follows:

1st. That a judgment for costs does not draw interest and interest should not have been allowed on the $ 131.60 costs taxed in the original judgment.

2nd. That interest is not recoverable on a bond such as the one sued on in excess of the penalty of $ 500.

3rd. The sheriff is not entitled to commissions on an execution sale of property where the property is bid in by the judgment creditor.

4th. The item of $ 319.58 to the Riverton Review for publishing notice of sale was excessive and not allowable as costs to any amount by which the same exceeded $ 1.50.

5th. The $ 431.51 costs alleged to have been incurred in connection with the execution have never been taxed and are not recoverable against the judgment debtor or its surety until taxed and approved in some manner by the court.

6th. The item of $ 413.51 as costs on the execution is an improper charge because the execution not being issued out of the court in which judgment was obtained is void and all proceedings thereunder are void.

7th. If the execution and sale were valid the $ 6,668 realized therefrom must be credited first on the expense of the execution wiping out the $ 413.51 and 2nd on the costs taxed in the original judgment and 3rd on the net amount of the damages in the original judgment.

8th. The bond sued on did not cover any judgment for costs in favor of defendant on her cross-action.

9th. That William M. Mooney, C. P. Twitchell and Riverton State Bank should have been joined with Nina A. LaPorte as plaintiffs as they are all obligees in the bond, and therefore the demurrer on the ground that there is a defect of parties plaintiff interposed by defendants in the court below should have been sustained.

10th. That the suit was prematurely brought as the original case was in the Supreme Court undetermined at the time this suit was tried in the District Court.

From the view we take of the case, it will not be necessary to consider in detail each of these alleged errors nor will we consider them in the order presented by counsel in the brief, but will take up those we consider necessary for a full decision of the case in what seems to us the logical order.

The 9th error claiming that there is "a defect of parties plaintiff" while it might have been good at common law is answered by the provisions of the Code, sections 4311 and 4312, of Wyoming Compiled Statutes, 1910, providing that an action must be prosecuted in the name of the real party in interest and that "anyone entitled by law to the benefit of the security may bring an...