Ivinson v. Pease , 1 Wyo. 277 ( 1875 )

By the Court,

Carey, J.:

This is what purported to be a proceeding commenced before associate Thomas, in vacation, to re-examine, recharge and retax certain costs taxed by L. D. Pease, justice of the peace (one of the defendants in error), in Albany county, in certain prosecutions which had been instituted by the plaintiff in error against one Thos. Alsop and others, charging them with the commission of certain felonies.

The record in this case presents a strange state of facts. It appears that after the said prosecutions for felony had been partially examined, the witnesses for the prosecution were induced to leave the court-room, and that the prosecuting witness, the prosecuting attorney and the justice of the peace then and there agreed that the said prosecution should be dismissed, and that the prosecuting witness, Edward Ivinson, should pay all costs. The costs were accordingly taxed against the said Edward Ivinson, and execution issued therefor. It was to retax the costs that this proceeding was commenced. The district court affirmed the action of the justice.

The statute provides the manner in which the judgments of a justice may be reversed and affirmed, and we are satisfied that the proceedings instituted before the judge in this case did not give him jurisdiction of the case.

We are also satisfied that a justice, prosecuting witness and prosecuting attorney do not possess the power to compromise felonies. That the statute authorizes the taxation of costs in misdemeanors against the prosecuting witness, but not in felonies, but in this case the prosecuting witness agreed to pay the costs. That there was an erroneous and illegal taxation of costs. We have no doubt that a court of equity, on the institution of proper proceedings, would give the plaintiff in error such relief .as his case may merit, or if there is a collection of improper costs, that there may be a recovery had in a court of law.

All proceedings in this case dismissed.