Gall v. Gall

The plaintiff on the 16th of October, 1897, recovered a judgment, including costs and allowances, against the defendant, as administratrix of Joseph Gall, deceased, for $21,960.60. The costs and allowances amounted to $1,835.60, which, in pursuance of a certificate made by the learned justice before whom the case was tried, were taxed and included in the judgment, and directed by it to be "recovered out of the individual property of the said Amelia Gall.” On the 22d of October, 1897, the defendant made a motion to strike from the judgment the provision “that the plaintiff recover the costs of the action out of the individual property of the defendant,” and to “set aside and vacate” the certificate of the trial justice awarding costs to the plaintiff, which resulted in an order modifying the judgment in so far as it directed the costs to be paid out of the individual property of the defendant, and striking such provision out of the certificate, and in other respects denying defendant’s motion. From this order no appeal was taken. The defendant, however, did appeal from the judgment as thus modified; and after an affirmance by this court ( 27 App.

1. The power of the court to award costs to the plaintiff was before this court on the appeal from the judgment, and that question was-then settled and determined. Mr. Justice Barrett, delivering the opinion of the court, said:

“As to the costs, it is sufficient to say that the trial justice, upon evidence-which was satisfactory to him, made the certificate required by section 1836-of the Code of Civil Procedure. This certificate was subsequently amended upon affidavits, which the appellant has not chosen to present to us. We cannot say, therefore, that this amended certificate was unwarranted. The defendant is concluded thereby upon the question of costs. Having previously awarded costs under section 1836, it was within the discretion of the trial justice, in a difficult and extraordinary case, to grant an extra allowance. This was clearly such á case, and that discretion was fairly exercised.”

2. The relief which the plaintiff sought to obtain by the motion which resulted in the order appealed from, the court refused to grant by the order made in November, 1897. No appeal, as has already been said, was taken from that order, the defendant apparently being contented to review the judgment by appealing therefrom. The judgment was affirmed, and the action of the justice granting the certificate approved;, and, inasmuch as the order of November, 1897, was not appealed from, it is final and conclusive upon the defendant, and especially so in the absence of the statement of other facts then unknown to the moving party. No new facts are alleged, nor does it appear that permission has been given, to renew the motion.

3. The motion was properly denied on the ground of defendant’s laches. A party desiring to relieve himself from an order must move promptly and act with diligence. The defendant knew what the judgment was in October, 1897. She contented herself with appealing from it, and made no effort to obtain the relief here sought until upward of three years after the. judgment was entered.

The appeal from the present order is without merit. There is nothing in the moving papers to show any justification for the appeal, and'for that reason the appellant should personally pay the costs and disbursements of the appeal.

It follows that the order appealed from must be affirmed, with costs, and disbursements to the respondent, to be paid by the appellant personally. All concur.