Tyler v. Tillotson — 3 Hill & Den. 442

Majority

p. 442

Tyler vs. Tillotson.

Headnote

A demurrer having heen noticed as frivolous, but not moved as such, was finally argued in the regular course of the calendar, and judgment rendered in favor of the party demurring, with leave to the opposite party to amend on payment of costs: held, that the former, in taxing the costs, was not entitled to charge a retaining fee for counsel, nor a special motion fee for attorney and counsel attending to oppose in case of the demurrer being moved as frivolous, but only costs on the argument.

A retaining fee for counsel is only taxable where the party finally prevails in the cause, and not on any interlocutory proceeding or judgment.

S. H. Hammond, for the plaintiff, moved for a re-taxation of costs. The defendant demurred to the declaration, and the plaintiff gave notice that he would bring on the argument on the ground of the frivolousness of the demurrer, but did not move it as frivolous. When the cause was reached on the cal

p. 443

cndar it was argued, and judgment was rendered for the defendant on the demurrer, with leave to the pláintiff to amend on payment of costs. The plaintiff elected to withdraw the demurrer and amend his declaration. The defendant charged and had taxed a retaining fee of counsel, five dollars. He also charged attorney and counsel fees as upon a special motion for attending to oppose on the notice that the argument of the demurrer would be brought on as frivolous, in addition to the usual costs upon the argument of the demurrer.

D. Burwcll opposed the motion.

All the charges which have been pointed out are improper, and should not have been allowed by the taxing officer. A retaining fee for counsel is only chargeable where the party finally prevails in the cause, and not on any interlocutory proceeding or judgment. As to the other charges, a notice that the argument will be brought on upon the ground of the frivolousness of the demurrer or bill of exceptions, is nothing more than a notice that the cause will be moved before it is reached on the calendar, and whether it is so moved or not, the opposite party cannot charge costs for attending to resist that particular motion. He can only charge costs on the argument or for attending to argue the demurrer or bill of exceptions, without any reference to the special form of the notice.

Motion granted.