Farley v. Bryant , 41 Me. 400 ( 1856 )

Cutting, J.

It appears from the documents before us, and others to which reference is made, that the plaintiff duly filed his bill in equity against the defendants, praying this Court to reform a deed upon the allegation of certain mistakes therein. That at the April term, 1851, judgment was rendered that the plaintiff was entitled to a decree reforming the deed in one particular and not in another, and that he should “ recover his costs, excluding from the taxation thereof, all testimony not connected with the correction of that mistake.” [See Farley v. Bryant & als., 32 Maine, 480.]

It further appears, that on Nov. 4, 1853, the plaintiff filed the items of costs claimed by him to be allowed, in the clerk’s office; that the clerk refused to consider or tax the same, because they were “ filed after the expiration of one year from the rendition of judgment,” and referred the parties to the Judge at Nisi Prins, who “ allows bill of costs to be taxed before clerk.” To this ruling the defendants except, and contend that the items were filed too late.

By statute, c. 115, § 104, “No first execution shall be issued after the expiration of one year, from the time judgment was entered.” Consequently, in no event can the present judgment for costs, when taxed, be enforced by execution. It is to be presumed that the clerk, in the regular discharge of his duties, had made up the record, so far as the same could be done, before the schedule of costs was presented, with perhaps a blank space left for the insertion of costs, if subsequently legally ascertained, and which can now be inserted and the record enlarged and amended only according to the truth and for good cause shown.

In Allen v. Haskell, 31 Maine, 589, this Court have decided, “ that the taxation ought to be made up within some fixed time. Applications for that purpose, made more than a year after judgment, are considered too late, except for causes not appearing in that case,” and cite Rule 21 of chancery practice.

Cases may occur, where a party, in the exercise of due diligence, is delayed more than a year after the rendition of judgment, before his costs can be finally adjudicated, settled and allowed; and to determine that such a party is without remedy would be, as to him, a denial of justice. The case, then, under consideration, involves this question of fact, has the plaintiff used due diligence ? The evidence upon that issue was addressed to the final judgment and discretion of the presiding Judge, and, as a question of fact, was for him alone to decide, and from his decision no exceptions will lie. [Stat. of 1852, c. 216, § 8; Jackson v Jones, 38 Maine, 185.]

Exceptions not sustained.

Rice, Appleton, and Mat, J. J., concurred. Tenney, O. J., did not sit.