Pryor v. Beck , 21 Ala. 393 ( 1852 )

DARGAN, C. J.

— Tbe declaration is upon a bond executed by Margaret Batchelor as principal, and tbe defendant and others as securities, and is subject to a condition to tbe following effect: “That whereas tbe said Margaret was prosecuting a suit against Pharr & Beck, to recover for goods sold and services rendered them by tbe intestate of tbe said Margaret: Now if she shall prosecute her suit with effect, and pay and satisfy all tbe cost that may be awarded said Pharr & Beck, and to tbe officers of tbe court, then tbe bond to be void; otherwise to remain in full force and effect.” Tbe breach of this condition as set out in tbe declaration is, that a judgment for costs was rendered in favor of Pharr & Beck, and tbe amount awarded to them and to tbe officers of tbe court is three hundred and forty-four 67tVó dollars, which the said defendant failed to pay, nor bad snob cost been paid by any one else. To this declaration the defendant demurred, on the grounds that it was not alleged that there was produced, or ready to be produced, to the defendant an account or bill in writing containing 'the particulars of such fees, and also on the further ground that it was not alleged that the clerk and sheriff kept fee books in which the fees sought to be collected were entered.

Our act, it is true, requires that the different clerks and sheriffs shall keep fee books, in which shall be entered all items of costs or fees due those officers. See Clay’s Dig. 237, § 3-4. But we do not think this act can have the effect to alter the rule of pleading as applicable to the bond before us. The general rule is, that it is sufficient if the breach be assigned in the words of the contract, and if the language employed be co-extensive with the condition, and negative its performance, this is sufficient. Chit. Plead. 332-333. But independent of this general rule, the act referred to only requires that those officers shall enter into their books the fees due to them, and not such fees or compensation as may be due to the witnesses in the cause; and this suit is brought to recover all costs. If, therefore, it were even necessary to aver that the fees due the clerk and sheriff were regularly entered in the books provided by law to be kept, still the failure to aver this, in the case before us, would not render the declaration defective, as it seeks to recover all the cost, and not such fees only as were due the clerk and sheriff. A general demurrer, in order to be sustained, must go to the whole declaration, and if the declaration be good to recover a portion of the sum sued for, the demurrer should be overruled; unless, indeed, there may be cases (but as to which we will not stop to inquire) in which the entire amount sued for must be recovered or none. If there be such cases, or if they could be supposed, then, it may be, that if the declaration was imperfect as to a part of the demand, a demurrer would go to the whole action. But this certainly is not the case at bar. Indeed, we think that the breach as assigned, is sufficient to entitle the plaintiff to recover all costs.

We are also of the opinion, that the court did not err in allowing tbe transcript of tbe judgment to be read as evidence, upon tbe usual certificate of tbe clerk. Tbe ground of objection was, that tbe clerk was interested in tbe result of tbe suit, be being entitled to a portion of tbe cost sought to be recovered, and therefore bis certificate came from one who could not be examined as a witness, and, consequently, be was incompetent to certify.

This objection would apply to almost every case where tbe transcript of a judgment, certified by tbe clerk, was sought to be introduced as evidence in an action of debt, founded on tbe judgment; for in most of them, tbe cost of tbe original suit is sought to be recovered, in which tbe clerk has, prima facie at least, an interest, and if we were- to sustain this objection, we would in effect destroy one of tbe rules by which tbe record of a judgment may be proved, to wit: by tbe certificate and seal of tbe keeper of tbe record. Tbe test by which tbe judgment may be proved is, whether it is certified by tbe proper officer, and in due form. If these requisites appear, then tbe record is admissible, whether tbe officer have an interest in it or not.

Tbe next question presented in tbe course of tbe argument is this: can a party against whom cost has been taxed, controvert the amount thereof .in any other mode than by a direct motion to have tbe cost re-taxed ?

Tbe taxing of cost, it is true, is a 'ministerial act; at least to this extent, that it is subject to be revised by tbe court, and corrected if found incorrect. But when tbe act is done, that is, when tbe cost is taxed, it then becomes part of tbe judgment, and may be collected as such, either upon tbe execution issued on tbe judgment, or recovered in an action of debt; and if it be a part of tbe judgment, it must follow that tbe taxation cannot be impeached, when drawn in question collaterally, either in the court in which tbe judgment is rendered, or any other. In tbe case of Brady v. The City of New York, 2 Barbour’s S. C. R. 569, the question was directly presented, and tbe court held, that tbe taxation of cost was a judicial, act, and could not be collaterally impeached. See also Allen v. Hickman, 1 Hals. 409. We think this is tbe correct rule; and also, that a party who would re-examine tbe terns of cost as taxed, must do so by a direct motion to have the cost re-taxed, wbicb can be made only in tbe court in wbicb tbe judgment was rendered.

It is also insisted, that tbe fees of tbe witnesses wbo were summoned on tbe part of tbe plaintiff in tbe original suit, cannot be recovered in this, because Pbarr & Beck could not be made to pay them, and tberefore they are not covered by tbe bond. But we think otherwise. Tbe object of tbe bond is, to secure tbe collection of all costs, not only sucb as tbe obligee may be compelled bimself to pay, but all that shall accrue, and' tbe bond can be put in suit only in tbe name of tbe obligee; be, tberefore, must recover all tbe cost, without regard to tbe question whether be could be made liable to pay all or not. He is a trustee for tbe benefit of all, and as sucb, must recover to tbe extent of all wbo are designed to be protected by tbe bond.

Tbe defendant prayed tbe court to instruct tbe jury, that, as it bad not been proved that tbe clerk kept a fee book in wbicb all tbe fees due him bad been regularly entered, that sucb fees could not be recovered; and further, that as it bad not been proved that tbe plaintiff bad produced, or was ready to produce to tbe defendant an account or bill in writing containing tbe particulars of tbe fees due to tbe clerk, that sucb fees could not be recovered; wbicb charges were refused. Tbe statute we have referred to requires, that tbe clerks shall keep a fee book, in wbicb they shall enter tbe fees due them, and also declares, that none of tbe fees shall be payable until there be produced or ready to be produced to tbe person chargeable therewith, a bill, or an account in writing, containing tbe particulars of sucb fees, signed by the clerk or officer to whom sucb fee shall be due, or by whom tbe same is chargeable, &c.

Whether it is necessary, when tbe suit is on tbe bond, to produce tbe bill or account in writing contemplated by this act, or to prove that tbe officers kept regular fee books, I do not think it is necessary to decide; for there is no plea found in tbe record, and tbe presumption is, that none in fact was filed. This is not error after a trial before tbe jury, when tbe parties appeared and contested tbe case as if there bad been pleas regularly filed. Lucas v. Hitchcock, 2 Ala. 287; Castleberry v. Pierce, 2 Stew. & Por. 141.

But when no pleas are in fact filed, but a trial is had on the merits, we can only presume that'such pjeas were filed as went to the'merits of the action; that is, such'as the general issue, payment, &c. We will not intend that a special plea, that is technical in its character and does not reach the merits of the cause, was filed. In the case before us,, we would presume that a plea, showing there was no breach of the condition of the bond or payment, was filed, or perhaps any other plea that would show that the plaintiff had not, and never would have, a cause of action op the bond. But the defence insisted on by the defendant only goes to this action,-even if it could be allowed, and would not preclude the bringing of another suit for the same fees, after they had been regularly entered in the fee book, and a bill of them produced and rendered to the defendant. This defence, then, is a purely technical one, and we cannot presume that it was presented by a special plea. If it had been, in all probability it would have been, or at least it could have been, disproved, and as it was not, the plaintiff was justified in supposing that the grounds of de-fence relied on, went to the merits of the action only; and to allow the defendant to take advantage of'the non-production of proof, when he had not required it by a special plea, would be to allow him to take advantage of his own neglect. If he intended to insist-on this defence; he should have pleaded it specially; as he did not, the plaintiff might well consider that it was waived.

The last question we propose to examine is, whether the court erred in rejecting the execution as evidence, which was offered by the defendant to show that the cost was less than it appeared to be in the certified transcript.

Although a judgment is conclusive between the parties as to every fact decided by it, yet the the certified transcript is only -prima fade evidence of • the judgment itself. For instance : suppose the judgment be for-one hundred dollars, and the clerk by mistake should make out a transcript showing it to be for two hundred, the defendant would not be precluded from showing the true amount; such proof would not controvert any fact determined by the judgment. This, I think, may be done either by introducing a transcript for the true amount, certified by the same officer, (and it would then be for the jury to decide which was the correct transcript) or it might be done by copies connected with parol proof that such copies were correct. The only question on this branch of the case, therefore, is, was the execution properly certified by the clerk, or did it appear to be the original execution itself, which had become part of the record. The execution is signed by the clerk, but it is not certified by him; it therefore could not be received as a transcript regularly certified by the keeper of the record, and there is nothing upon the instrument itself to show that it is the original, or that it is a part of the record. It is issued against Margaret Batchelor and all her securities for cost, when the judgment for cost is against her alone. It does not appear ever to have been put in the hands of the sheriff. We, therefore, cannot hold it to be the original execution which has become part of the record ; nor is it a transcript proved or certified; consequently it was properly rejected.

We can perceive no error in the record of which the plaintiff in error can complain, and the consequence is, that the judgment must be affirmed.

CHILTON, J., did not sit in this cause.