Sanders v. Marcelious

Neither of the items as to which the defendants’ solicitor asks a relaxation were properly taxable against the complainants, even if he had produced evidence before the taxing officer that the services were actually performed. But as the complainants’ agent objected to the allowance of any item without some proof that the services had been performed, that of itself was a sufficient ground for rejecting those items, in the absence of such proof. Copying of the order appointing the guardian ad litem, and serving the copy on the complainants’ solicitor was an unnecessary proceeding. The charge in the bill of costs, of *164the notice of the appearance of the guardian, but which should have been notice of the appointment of such guardian, was the only proper charge.

As the statute prohibits the allowance of á charge for any service which has not been actually performed, if two subjects are embraced in the same notice, only one notice can be allowed if objected to on the taxation. The affidavit of the defendants’, solicitor shows that the motion to discharge the ne exeat was not made in term; and he was not therefore, entitled to the charge of one dollar and fifty cents. But if his agent, actually attended upon the argument of the motion, and was hot the same person to whom an allowance^ made as counsel upon the same motion, he was entitled to an allowance of one dollar for such attendance ; according to the decision of this court in Rogers v. Rogers, (2 Paige’s Rep. 471.) The defendants’ motion for a retaxation must be denied, with costs.

Many of the items which were allowed upon the taxation were not properly taxable against the complainants, even if there had been an affidavit of the solicitor of the defendants that all the services charged in the bill had been actually performed. But as there must be a retaxation upon the ground that the taxing officer proceeded without the proper evidence of the performance of the services charged, I shall only advert to a few of those items. The solicitor was not entitled to the extra expenses produced by malting out separate bills of costs. The bill being dismissed with .costs before the costs upon the motion to discharge the ne exeat were made out, there was no good reason for charging those costs in a separate bill, except for the mere purpose of getting the extra costs of a separate proceeding to collect the same. Such a useless multiplication of costs is not to be encouraged or tolerated, and the whole must be made out and taxed in one bill. The proper course for the defendants was to file the complainants’ stipulation, and to enter an order that the bill be dismissed with costs, and then to get his costs taxed' and to collect them upon the execution. ,

As the answer had never been served on the complainants’ solicitor, or been seen by him, the defendants’ solicitor, in ad*165dition to the affidavit that the draft and copies were actually made before he had any notice of the complainants’ intention to discontinue the suit, should have produced the answer itself before the taxing officer; so that it could be seen whether it was unnecessarily prolix, and that the whole which was charged as the draft was actually such and not papers and documents inserted therein in hcec verba. The allowance of 18 folios for the petition and jurat to obtain the appointment of the guardian ad litem, was exorbitant and oppressive. The whole petition, if properly drawn, could not have exceeded two or three folios including the jurat. And the jurat should not have been allowed as a separate item in the bill of costs. (2 Paige’s Rep. 51.)

After the complainants’ agent had objected to the allowance of any item until the defendants’ solicitor produced evidence that the service had been performed, (and under the circumstances of this case I think he was justified in requiring strict proof,) the taxing officer had no right to allow any item upon the mere assertion of the defendants’ solicitor that the service had been performed. The proper course for the solicitor presenting the bill of costs for taxation, when such an objection is made, is to annex to the same a short affidavit that the services charged therein have been actually performed; that the number of folios therein charged do not exceed the actual number contained in the pleadings and proceedings, according to the best of his knowledge and belief; and that such services were necessary, or that he believed them to be necessary at the time they were performed. Such an affidavit when properly drawn will not exceed two or three folios ; and if it is made necessary by the objections of the adverse party it may be added to the bill by the taxing officer.

The application of the complainants for a retaxation must be granted, but without costs to either party. The costs must be retaxed before the vice chancellor of the seventh circuit. The defendants’ solicitor must make out a new bill of the costs upon the dismissal of the bill, including therein the costs of the motion to discharge the ne exeat and the costs of entering and enrolling the decree of dismissal and of *166the execution thereon, and must annex thereto his affidavit of the correctness of the several items, in the form above suggested; and he is not to be allowed upon the taxation for the costs of the answer unless he delivers the copy which has been prepared for the complainants to their solicitor at least eight days before the time appointed to attend before the vice chancellor upon such retaxation. Either party is to be at liberty to have the costs of opposing the defendants’ application for a retaxation, offset against the costs upon the dismissal of the bill.