Rainer v. McElroy , 20 Ala. 347 ( 1852 )

PHELAN, J.

We have heard no sufficient reason assigned why Buñyard and wife, who are proved to have been non-residents, should not have been required to give security for costs as non-resident "plaintiffs. They were actors in the proceeding in the Probate Court to try the validity of the will of Isaac MeElroy, deceased. The statute says: “Every action at common law and suit in chancery, commenced in the name of any person residing out of this State, shall be dismissed, if security be not given,” &c., “for the payment of the costs which may be awarded to the defendant,” &c. This was doubtless intended to comprehend every judicial controversy to which there were opposing parties, that could lawfully come before the regularly constituted tribunals of the country. The case of Jacott et al. v. Hobson, 11 Ala. 435, is analagous to this. There the suit was the statutory proceeding for a “trial of the right of property.” The reasoning of the court in that case will hold good in this; for which see that case.

Let us next take up the costs taxed, to which exceptions were taken, and consider them. All the statutes upon the subject of fees declare, that none shall be taxed except such as are expressly allowed by law. Clay’s_ Dig. 231; Acts of 1850, p. 30. Viewed in the light of these statutes, we consider as good and lawful all those which were allowed to the Judge of Probate by the court below, and to which exceptions were taken as aforesaid, except the two following, viz : “To certificates of filing bond for costs, 50 cents; to filing two depositions, and certificates of filing.same, 50 cents each, $1and for these we find no sufficient authority.

And we further consider as good and lawful all those which were allowed to the sheriffs, to which exceptions were taken, except those taxed as follows, viz: “ To entering and returning two notices, 25 cents each, 50. cents; to copies of two notices, 25 cents each, 50 cents;” 'and for these we find no sufficient authority. One item or more of the bill of costs to the sheriffs is in these words: “To entering and returning subpoenas, 25 cents each.” A fee is properly chargeable for “returning” a subpoena, under the provision for “returning mesne process ,n but there is no provision that we can find which allows to a sheriff a fee for “entering” a subpoena in terms, or as mesne process generally. The fee for “returning ” is 12’ cents, and not 25 cents, and to the extent of one-half therefore, these items are not lawful.

For the error in taxing the costs, in the particulars, and to the extent specified, contrary to the exceptions of the plaintiff in error, tbe decision of tbe court below in tbe matter of tbe taxation of tbe costs is reversed; in all else it is affirmed; and tbis court proceeding to render sucb a judgment as tbe Probate Court should bave rendered, directs a judgment to be' entered against tbe plaintiff in error in favor of defendant in error, for tbe sum adjudged to bim by tbe court below, deducting therefrom tbe items of costs herein decided not to be lawful.