Shufelt v. Power

The plaintiff’s counsel insists that he had a right, notwithstanding the order staying his proceedings, to notice the cause for trial, and put it upon the calendar, so that he might be in a situation to try it, in case the commission should be returned. Perhaps this is so, though I am not prepared to say this would be allowable. Yet, if so, there is another objection to the allowance of calendar fees during the operation of the order staying proceedings.

To entitle a party to this fee, it must appear not only that the cause has been regularly put upon the calendar, but also that it has been postponed, or has not been reached. It is not pretended that the cause was not reached as often as it was put upon the calendar. It was not tried because the plaintiff was not in a condition to try it: he was under an order staying his proceedings. Nor was this stay, in any proper sense of the term, a postponement of the trial. The term, “postponed,” as used in the 8th subdivision of the 306th section of the Code, evidently has reference to something occurring at the circuit, *91which has the effect to delay the trial. When, by the order of the court, or, perhaps, by the agreement of the parties, a cause, which might otherwise have been tried, is put over the circuit, the party ultimately successful will be entitled to the circuit fee allowed by this section of the Code, unless some order or agreement to the contrary has been made by the court or the parties. In this case, the cause, even if properly on the calendar, was not postponed at the circuit, nor is it pretended that it was not reached. The circuit fees were, therefore, improperly allowed.

An order must be entered deducting $30 from the costs, as taxed by the clerk. Neither party is entitled to costs upon this motion.