Frost v. Frost — 1 Barb. Ch. 492

Majority

p. 492

Frost vs. Frost and Bevins.

Headnote

The act of 1840, to reduce the expense of foreclosing mortgages in the court of chancery, applies only to cases in which the complainant can bring his cause to a hearing, and obtain his decree, without the necessity of filing a replication to the defendant’s answer.

Where an adult defendant puts in an answer, setting up new matters of defence, or putting in issue any material allegations in the hill, so as to render it necessary for. the complainant to establish such allegations by proof, at the hearing, the provisions of the act of May, 1840, as to the amount of costs in foreclosure suits do not apply.

And the complainant is entitled to full costs in such a case, although he is enabled to bring his cause to hearing upon bill and answer, and to prove the matters put in issue by the answer, at the hearing, by the production of documentary evidence;. under the second clause of the 17th rule of the court of chancery.

Where a bill of foreclosure was filed against several defendants, one of whom put in an answer which rendered it necessary to file a replication; in consequence of which that defendant, by the final decree in the suit, was charged with the extra costs, thus occasioned, beyond the amount allowed by statute in foreclosure cases where no defence is made; Held that the proper course was to ascertain the whole taxable costs of the complainant, in the same manner as if the defendant against whom the extra costs were charged had been decreed to pay the full costs of the suit, and then to ascertain the amount of costs which would have been taxable, under the statute, if such defendant had suffered the bill to be taken as confessed for want of an answer. The last amount should then be taxed as the general costs of the cause, to be paid out of the proceeds of the mortgaged premises; and the residue of the full bill of costs, after deducting therefrom the last mentioned amount, should be taxed as the extra costs occasioned by the putting in of the answer of the defendant who was personally charged with such extra costs.

Held also, that in the full bill of costs the fees of the register, or clerk, for all his services, should be charged at the rate fixed by the general fee bill. But in the general

p. 493

costs to be paid out of the proceeds of the sale only the charges for the services of the register or clerk which are allowed under the act of May, 1840, and at the rate therein prescribed, should be included. And that in the full bill, all the necessary disbursements in the suit should he charged, but in the other bill only such disbursements as would have been requisite if the answer had not been put in.

Where the solicitor in the cause actually attends the court, upon the hearing of a cause, he is entitled to the allowance specified in the fee bill; although he is not actually present, in the court room, at the moment the decree is obtained or the cause is argued.

A solicitor is only entitled to an allowance, for attendance upon the examination of witnesses, for the number of days he actually attends before the examiner. He cannot charge for his time in travelling to and from the residence of the examiner. Nor for his attendance over the sabbath, when testimony cannot legally be taken; although he is obliged to remain from home till after the sabbath, to continue the examination of his witnesses the next day.

Where a cause is reached, upon the calendar, and goes over the term at the request and for the particular accommodation of the counsel of the party who finally succeeds in the cause, such party is not entitled to charge his adversary with the costs of noticing the cause, and for the other expenses of the term. But where the cause is not reached upon the calendar, or where it goes oif for the mutual accommodation of both parties, those expenses are taxable.

This was an application by J. L. Bevans, one of the defendants, for the relaxation of costs in a foreclosure suit. The complainant was the assignee of the mortgage; and Bevans, who was made a defendant as having an interest in some part of the mortgaged premises as a subsequent purchaser, or incumbrancer, put in an answer which rendered it necessary to file a replication and to prove the execution of the assignment. The other defendant suffered the bill to be taken as confessed. The cause was noticed for hearing, and when reached in its order, upon the calendar, the defendant’s counsel being absent, a regular decree by default was obtained in favor of the complainant. On the same day the complainant’s counsel consented to waive such decree, and to let in the defendant’s counsel to argue the cause; and it was not reached again at that term. At a subsequent term the cause was heard, and a decree of foreclosure and sale was obtained. The vice chancellor, before whom the case was heard, also decreed that the defendant Bevans should be personally charged with the extra costs occasioned by the putting in of his answer, beyond the amount allowed by stalute in fore

p. 494

closure eases where no defence is made. The counsel for Be-vans, upon the taxation, insisted- that there were no extra costs occasioned by his answer; and that the complainant was only entitled to the allowance prescribed by the act of May, 1840, as amended in 1841. He also objected to the allowance of the solicitor’s and counsel fees at the- term when the decree was taken by default and subsequently waived. And other objections were made to the items of the costs before the taxing officer.

J. C. Wright, for the complainant.

R. W. Peckham, for the defendant Bevans.

The act to reduce the expense of foreclosing mortgages in the court of chancery, (Laws of 1840, p. 287,) applies only to cases in which the complainant can bring his cause to a hearing and obtain his decree of foreclosure and sale,- and for the payment of the whole amount claimed in his bill, without the necessity of filing a replication. And where an adult defendant puts in an answer setting up new matters by way of defence, or putting in issue any material allegations in the bill, so as to render it necessary for the complainant to establish such allegations by proof at the hearing, the provisions of the act of May, 1840, as to the amount of costs in foreclosure suits, do not apply. The complainant is also entitled to full costs, in such a case, although he is enabled to bring his cause to hearing upon bill' and answer, and to prove the matters put in issue, by the production of documentary evidence at such hearing; under the second clause of the 17th rule of this court. For the answer of the defendant denies a material matter set forth in the bill, within the intent and meaning of that act, whenever such matter is put in issue by the general traverse, or otherwise, so as to render it necessary to prove such matter upon the hearing of the cause. The taxing officer was therefore right in taxing extra costs against the defendant Bevans, under the decree which- had been made in this case.

1 think, however, he has made a mistake- in the principle upon

p. 495

which the costs should he taxed in such a case. Under such a decree it is impossible to separate the taxable items, so as to make two separate bills of costs each item of one of which bills shall be entirely separate and distinct from the items embraced in the other. The proper course, in such a case, is to ascertain the whole taxable costs of the complainant, in the same manner as if the defendant, against whom the extra costs are charged, was decreed to pay the whole costs of the suit; and then to ascertain the amount of costs which would have'been taxable, under the statute, if such defendant had suffered the bill to be taken as confessed against him for want of an answer. This last amount should then be taxed as the general costs of the cause, to be paid out of the proceeds of the mortgaged premises. And the residue of the first bill, after deducting that amount therefrom, should be taxed as the extra costs occasioned by the answer of the particular defendant whose answer caused such extra costs. In the first bill, the fees of the register, or clerk, for all his services, should be charged at the rate fixed by the general fee bill; which is the amount that the complainant’s solicitor is bound to pay to the state in such a case as this. But in the last bill, only the allowances, for the services of register or clerk, which are fixed by the act of May, 1840, and at the rate therein prescribed should be taxed. In the first bill, all the necessary disbursements in the suit should be charged; and in the other only those disbursements which would have been requisite if the answer had not been put in.' The costs must, therefore, be referred back to the taxing officer to be retaxed upon those principles; and the complainant’s solicitor must make out and serve a new bill accordingly.

The complainant was entitled to the solicitor’s and counsel fees for attending and arguing the cause at the term when the decree by default was obtained: as the cause was not again reached at that term. The case would have been otherwise if the cause had been reached and again heard at the same term. The solicitor swears he actually attended the court upon the hearing; and though he happened to be out at the moment the decree by default was obtained, he is still entitled to the allowance for attendance specified in the fee bill. As the counsel for

p. 496

the defendant did not know the solicitor, his affidavit that he did not see him in attendance is not sufficient to countervail the solicitor’s oath that the service was actually performed.

The allowance for six days’ attendance on the examination of witnesses was erroneous. The solicitor is only entitled to an allowance for the number of days he actually attends before the examiner. He cannot charge for his time in travelling to and from the residence of the examiner; nor for his attendance over the sabbath, when testimony cannot legally be taken, although he is obliged to remain from home during the sabbath, to continue the examination the next day. Where the cause is reached upon the calendar, and goes over the term at the request and for the particular accommodation of the counsel of the party who finally succeeds in the suit, such party is not entitled to charge his adversary with the costs of noticing the cause, nor with the other expenses of the term. But where the case is not reached on the calendar, or where it goes off for the mutual accommodation of both parties, these expenses are taxable. The execution against Bevans appears to be properly taxable, as prospective costs. But it must be deducted if the costs are paid upon taxation, or before execution is issued.

Neither party is to have costs as against the other upon this application, nor the extra costs of the relaxation.