Thompson v. Thompson

The opinion of the Court was delivered by

The questions submitted relate to costs in a suit commenced prior to the Code of Procedure, by bill in equity by an executrix to call in creditors, marshal assets, &c, and transferred to the Court of. Common Pleas upon the abolition of the Courts of Equity.' The questions will be considered as they are raised by the appellant’s propositions of law and fact.

It is not necessary to consider the first proposition submitted, namely, that since the adoption of the Code costs cannot be taxed *288on account of proceedings previously had under the former laws then prevailing as to costs; for it was conceded by all the counsel, upon the argument, that the costs in the Court of Equity were taxed in that Court while the former laws on that subject were in force, and that no appeal was taken from such taxation, and that such taxation embraced all the items objected to by the appellants which relate to and grow out of the proceedings prior to the transfer of the cause to the Court of Common Pleas.

The item of $256 allowed to the late Commissioner, mentioned in the second proposition, and, the item of $355 to the attorney for the plaintiff, mentioned in the fourth proposition, belong to the class just mentioned. Having been taxed in the Court of Equity and no appeal having been taken, the right of the parties in whose behalf they were so taxed became absolute and are unaffected by any subsequent change in (he laws relating to costs.

The third proposition relates to an item allowed in the Court of Common Pleas in the following terms: “Fee to Referee Johnstone, $300.”

Section 337 of the Code authorizes the fees of officers to be included among the disbursements to be allowed in addition to costs. Section 339 declares that “the fees of Referees shall be three dollars to each for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.” It does not appear that any such agreement of the parties was produced. Unless such an agreement appears in writing, the fees of the Referee should be computed at the rate prescribed by Section 339. The allowance of a gross sum, as the present allowance appears to have been, was not in conformity with Section 339 and should be set aside.

The facts to which the fifth proposition submitted by the appellants relate appear to be as follows: A house and lot, part of the testator’s estate, having been sold under proceedings in this cause, a claim of homestead adverse to the purchaser was set up by third parties. At the request of the attorneys for creditors who had appeared, the plaintiff’s attorney defended this proceeding.

The attorneys for the creditors have agreed in writing that the costs of this defense, amounting, according to the report of the Referee, to $172.90, should be paid out of the fund. To this the parties interested in the testator’s estate object. No other proof is offered for charging this as a debt of the estate than the consent of *289the attorneys for the creditors. The Referee disallowed the item and the Court sustained his conclusion. The charge is not either one of costs or of disbursments, for the services alleged were not rendered in this cause. The creditors having consented to this form of compensation to the plaintiff’s attorney, doubtless to relieve the fund from a possible claim by the purchaser for indemnity, there is no reason why their shares of the fund should not be charged in accordance with their consent. As they have no power to affect the rights of other parties who did not unite in such consent, the item in question can only be charged against the creditors. As the creditors are appellants, and as, if they desire so to do, they can modify the order so as to bind their shares in accordance with their consent, it is not necessary that the order should be disturbed.

The sixth proposition of the appellants is not explained by any statement appearing on the Referee’s report or in any part of the proceedings, except in the statement made in the sixth exception to the Referee’s report of July 25th, 1873. ’ The language of an exception is not the source from which can be properly derived the facts and circumstances by which the Referee’s report can be tested.

If the parties prejudiced by a report wish to object to it, they must procure a statement of all that is necessary for the information of the Court, to be made out in the manner pointed out by the Code. The language of an exception is not a substitute for such a statement.

The orders appealed from should be modified in the manner hereinbefore pointed out and the cause remanded to the Circuit Court.