Stubbs v. McGuire ( 1885 )

Clinton, J.

The defects in the bond and the incompetency of the surety will not be noticed, ex proprio motu, by the Court; a motion to dismiss the appeal must be filed, even where no order of appeal has been granted. 27 An. 314; 8 R. 168; 21 An. 329.

2. Where the sheriff overcharges his costs and demands more than is due him, he forfeits the items overcharged ; but he does not forfeit his entire cost bill in the case. 22 An. 102; R. S. 748.

3. The sheriff has the right to charge ten cents a mile for distance from the courthouse to residence of each witness summoned, although, in summoning a number of witnesses in the same suit, he makes but one trip and serves the summonses on the same day. (Gunby, J., dissents from this proposition).

4. The “taxing of costs,” referred to in the Code of Practice, consists simply in the clerk’s annexing specific bills of costs to the fi. fa.; no other formality is necessary where judgment for costs has been rendered.

5. Where the main demand for damages and the reconven - tional demand for damages are intimately connected, and the witnesses have been examined and cross-examined on both issues, the costs will be divided equally between plaintiff and defendant, as the most equitable adjustment, where the Supreme Court has decided that plaintiff is bound for costs of the reconvéntional demand.

6. Where, in making out an execution for costs, the clerk omits several items which, on his attention being called to the fact several days after, but before the fi. fa. had been executed he inserts in the body of the writ, this act will not nullify the writ. No harm is done to the debtor.

7. In issuing execution for costs, the amount of the sheriff’s costs need not be specified in the body of the-writ; the amount of the clerk’s costs and the words, “ as well as your own costs and charges,” authorize the sheriff to collect his bill.

8. A witness’ claim for attendance must be certified to be correct by the clerk of the court before it can be collected; and where.a large number of witnesses have been summoned, whose claims vary from $3 to $20, neither six of the highest nor sis of the lowest should be charged to the opposite party, but an averr age should be made and six times the average cost of each witness should be allowed.

9. Where a sheriff makes duplicate charges, he loses only one of them.

10. Although the general rule is, that where only part of a fi. fa. is claimed to be not due, and that defendant should' enjoin only for the amount complained of, yet where he enjoins the whole writ and it is shown that it issued for largely more than was due, no damages will be allowed on partial dissolution of the injunction.