People v. Cortland C. P. — 19 Wend. 644

Majority

p. 645

The People, on the relation of Benjamin, vs. Cortland C. P.

ALBANY,

March, 1839.

Headnote

On the affirmance or reversal of a justice’s judgment, removed into a court of common pleas by certiorari, the costs of the prevailing party can be taxed only by the Srst judge of the county, or other county judge of the degree of counsel in this court.

Motion for a peremptory mandamus, on the return to an alternative writ. A justice’s judgment was removed into the

p. 646

C. P. by certiorari and reversed. The relator, who was the piaintjflf jn error, in perfecting the judgment of reversal, had the record signed by William Bartlett, a judge of the C. P., ^ut w^° was neither the first judge, nor of the degree of counsellor in the supreme court. On the motion of John Hutchinson, the defendant in error, the common pleas set aside the judgment record and subsequent proceedings on the ground that Judge Bartlett had no authority to tax the costs or sign the record. The relator insists that the C. P. erred.

J. Holmes, for relator.

M. T. Reynolds, contra.

By ¿the Court,

I think the C. P. decided correctly. None but the first judge, or some other judge of the county, being of the degree of counsellor of the supreme court, can tax costs or sign a record, except in those cases where the total amount of the costs to be taxed, exclusive of disbursements, is j.limited by law. 2 R. S. 282, § 35, 37. Just such a limitation as this, and the one which I think the legislature had in view, will be found in another statute, which provides for four classes of cases, in which the plaintiff’s costs, exclusive of disbursements, shall be taxed at certain specified sums, and no more. 2 R. S. 615, § 13. The limitation of costs on certiorari in the C. P., is of a different character. 2 R. S. 257. § 184. It is a limitation of the whole amount of costs, including disbursements. There is a further difference between the two provisions. In the first, the costs, exclusive of disbursements, are to be taxed at certain specified sums—neither more nor less : but in the last* although the costs cannot exceed, they may be less than ■the specified sum. The one case does not call for the exercise of any discretion on the part of the taxing officer; the ether does.

This is a case in which a strict construction of the statute will most fully carry into effect the intention of the legisla

p. 647

ture. It will give the taxation of costs, in all cases where it is not a mere form, to those officers who are deemed by law best qualified to discharge that duly.

Motion denied.