McArthur v. Starrett , 43 Me. 345 ( 1857 )

Rice, J.,

dissenting. The defendant now resides in Richmond, Ya. He formerly resided in Augusta, Maine, and was temporarily in that place when the writ in the former action was served upon him. The original action was continued several times before it came to trial. The defendant’s attorney resides in Augusta. For three terms of court, while the original action was pending, cost was taxed for the defendant, and allowed by the clerk, for travel from Richmond, Virginia., to Augusta, from which place he certified that he actually traveled to attend court in that action.

Fees were also taxed and allowed the defendant for a witness, for travel from Boston to Augusta, at three different terms of the court.

The plaintiff brings this writ to reverse the judgment, so far as the fees for the travel of the defendant and his witness, beyond the line of the state, constitute a part thereof, alleging that the judgment is, to that extent, at least, erroneous.

Error is a mistake in the foundation, proceeding, judgment, or execution of a suit in a court of record in matter of law or fact; and to correct which a writ of error lies. Co. Lit., 288, b.

The jurisdiction of our Supremo Court does not extend beyond the territorial limits of the state. It has no power over the persons of parties or witnesses beyond the limits of its territorial jurisdiction. It cannot compel the attendance, at court, of such persons; nor are persons residing beyond its jurisdiction, ever in contemplation of law, in attendance upon the court as parties or witnesses. Officially, therefore, it cannot take cognizance of the fact, that parties, before it, reside beyond its jurisdiction, or of their acts while beyond the limits of the state. The cost allowed for the travel of the defendant and his witness for travel beyond the line of the state was illegal, and should not have been allowed. White v. Judd, 1 Met., 293; Melvin v. Whitney, 13 Pick., 190.

Can this illegal taxation be corrected on a writ of error ?

It is contended that it cannot, because, it is said, error will not lie where a remedy may have been had by appeal. That such is the general rule is undoubtedly true. But the rule is subject to qualifications. Jewell v. Brown, 33 Maine R., 25. Among other exceptions, in this state, error may be maintained to obtain relief from an illegal taxation of costs. Valentine v. Norton, 30 Maine R., 194. The law was formerly the same in Massachusetts. Field v. Turnpike corporation, 5 Mass., 389; Wait v. Garland, 7 Mass, 453; Thomes v. Seaver, 12 Mass., 379.

In the case of Valentine v. Norton, cited above, Shepley, C. J., in giving the opinion of he court, says:

“ A writ of error may be maintained to obtain relief from an illegal taxation of costs. When such taxation is apparent, on inspection of the record, it is one of law. In the present case the errors respecting costs are assigned as apparent of record, yet upon inspection of record no such errors appear.

“ The counsel for the plaintiff in error contends, that a memorandum exhibiting the costs taxed, and filed with the papers in the case, is to be regarded as a part of the record. Nothing is presented by a writ of error to a court of errors but a transcript of the record. Papers and documents filed in the case, but not incorporated into the record; constitute no part of it. No correction of the errors alleged to have been committed in the taxation of costs could be made in this case by an assignment of them as errors of law.”

The alleged errors, in the case at bar, are not assigned as errors of law. They are errors of fact, not appearing in the record, but come before us by agreement of the parties, substantiated by the papers filed in the original case.

The counsel for the defendant in error relies upon two cases recently decided, in Massachusetts, and reported in 8 Cush., 236, and 1 Gray, 420. In these cases that court have adopted a different rule from the one formerly adopted by the same court in the cases already cited above. For this change they give no reason, except that the remedy for any irregularity in the taxation of costs by the clerk is by appeal.

No reference is made to the former decisions of that court upon similar questions.

But the true reason probably was, that the legislature - of Massachusetts, in chap. 52, law of 1829, re-enacted in R. S. of 1836, chap. 121, made specific provisions for appeal by any party aggrieved in the. taxation of costs by the clerk; and any questions of law arising out of the decision of any court or judge before whom -such appealed question should be tried, may be carried before the full court on report or exceptions under the provisions of chap. 81, R. S. No such statute exists in this state.

The cases in Massachusetts, reported in the 5th, 7th and 12th vols. of their reports, were decided before the statutes above referred to were enacted, and while the rule of that court for the taxation of costs was in the same words as the rule existing in this, at the time the opinion in Valentine v. Norton was announced. It thus appears that in the absence of statute regulation, under the same rule of court, the highest judicial tribunals of Massachusetts and of this state, have held that a writ of error is the remedy for a mistake in the taxation of costs. The rule has been changed in Massachusetts by legislative interference. But there has been no corresponding change by legislative enactment in this state.

It may be worthy of notice, that the early decisions in Massachusetts occurred before our separation from that state, and are therefore binding upon us as the authority of our own court.

It may also be remarked, that the same rule now exists in this state for the taxation of costs which formerly existed both here and in Massachusetts, except that in the revisions of our rules in 1855, 37th Maine R., 578, in rule 32, after providing that either party dissatisfied with the taxation by the clerk, may appeal to the court, or to a judge in vacation, was added these words: “from whose decision no appeal shall he taken."

Under such a rule it is submitted that the- right of an effectual appeal on a question of law cannot with propriety be said to exist.

Practically this change of the rule will subject parties to much inconvenience. They must now make an entry upon the docket “ to be heard in costs,” and must attend before the clerk for that purpose in all cases, or they will be absolutely remediless, however great may be the errors committed by that officer in taxing costs.

In view of these facts, the recent cases in Massachusetts cannot be deemed authority in this state, even in case our court was disposed to adopt, without inquiry, every change which the eminent tribunal of our parent state-may be, pleased to make.