Howard Building & Loan Ass'n ex rel. Budd v. Philadelphia & Reading Railroad , 1883 Pa. LEXIS 36 ( 1883 )

Chief Justice Mercur

delivered the opinion of the court, October 1st 1883.

The-main contention in this case involves the right of the plaintiff in a judgment, to-his .bill of costs, taxed.therein.

Costs of the party must not be confounded with fees of the officer. They are, for many purposes, essentially different : Ramsey v. Alexander, 5 S. & R. 344. Costs are an- allowance to a- party tor expenses incurred in conducting his suit: fees are compensation to an officer for services rendered in the progress of the cause: Musser et al. v. Good et al., 11 Id. 247. The plaintiff in a judgment, whether he be plaintiff or defendant in the action, collects the officers’.fees not for.himself, unless he has paid the officers, but as trustee for the officers who rendered the services: Ranck v. Hill’s Executor, 3 Barr 423; Ellsbre v. Ellsbre, 4 Casey 172. Whichever party to the action recovers, the fees of the officers for services rendered .therein become a part of the judgment, and if not.paid to the officers they may collect them by execution, of the defendant in the judgment.

Although the statute prescribes the fee to be received by a witness for each day’s attendance at court, yet. he is not thereby made an officer. His claim for services is against the party in whose behalf he rendered them. His right thereto is the same, whether such party failed or succeeded in recovering^ judgment. The losing party cannot collect the .fees of his witness from the successful party, yet the former- is nevertheless liable therefor. Nor is his witness’ righc of' action to recover the same, necessarily postponed until final judgment in the case: Utt v. Long, 6 W. & S. 174.

The object of the Act fixing the fees to which a witness is entitled, is to determine an allowance.as between him and the party in whose behalf he attended' court. It prescribes the measure of the party’s liability to the witness. Hence it was said by Mr. Justice Kennedy in Horner v. Harrington, 6 Watts 331, in commenting on the right of a witness under the fee bill, “ the allowance here expressed must be understood, and so it has ever been held, is to be paid to the witnéss by the party at whose instance or on whose behalf he shall have attended court, and the witness can look to no other for it.”

It follows, the learned judge erred in entering judgment for the defendant on the, point reserved.

The plaintiff’s waiver of the right of exemption was restricted to real estate. It did not extend to the indebtedness attached. His right to claim the exemption out of his portion of this judgment was therefore clear. Had he been served with the attachment he should have made his claim of exemption at the term to which the writ was returnable and before the plaintiff therein had taken any step to his detriment: Morris v. Shafer, 12 Norris 490. He however was not served. He appears to have made his claim as soon as he had notice of the execution of the writ, and before the plaintiff in the attachment had taken any further step to his detriment. The' claim was in time, and we disco.ver no merit in the other assignments of error.

Judgment reversed, and judgment in favor of the plaintiff in error on the point of law reserved for the $286.12 and costs.