CHETER AS I' II:Et, Pa'rte. '63 . CHES.TER ASITLEY,, Ex Parte. In a proceeding by quo ,warranto, if judgment go against the defendant, he is 'to' paY'nient of ' " ' ' • ' And the officers of . the court ,max, in i such case, have their fee bills madesout Mid c011ect them; Whlle the' matter : is still 'Undeterminid. • An officer,however, is not warranted,in charging in his fee bill ,against the defendant, any services rendered at the instance of the plaintiff. But- that. there are some •illegal-charges: in the : bill is no , ing , ground • for quash- it. The law furnishes relief in a different . way. Besides, he has it in his PoWer to coftect any'eeror in the 'taxation of eoSt'sThy having theni're-, taxed by the court,,or , under.,its direction. Where 'a fee'bill is issued in a case not autliori ! zed bY • law, it Might, Upon a 'proper application, be.superceded; ,but a motion to quash Would be irregular Absent, DICKINSON, Judge. ThiS Was 'a MotiOn'to'qnash • RI*GO; Chief Justice; delivered' the opinion of the court At the last 'term of this' . court.A . motion was made by Ashley to 'gnash 'a' fee bill 'made' out agaihst him for the clerk's fees, ity.the i-'ase of the State against 'him; on writ . of gun warran'to.... 'In support' of the motion it is nrged that . there is -no judgment-of ouster or final judgment given in the canse. That-the office or franchise,-the right of Ashley to 'exercise which,. is' in 'question . in said caSe, is not -a place of emolument or profit ; and that in cases . of guo•warrauto the defendant 'is not legally liable 'for 'costs; 'and therefore heinsists that this fee 'bill ought to -be quashed'. ''It , may be and probably is true; that the defendant in -such' case-was not, according to the' anCient law on the subject,- liable for , costs ;• but however this , May -have been; we deem it unnecessary to inqUire or decide, because; in our opinion, the question as . to costs' depends entirely' upon statAtory 'provisions. The 12th section of the 34th chapter.uf the.Revised Statutes of this State provides' that, "if 'any person shall sue in any • hetion, and Ediall recover judgment;, the plaintiff shall have judgment for costs against the defendant ;": and other provisions' of the same statute giv coSts in favor of the successful' defendant, in all actions
64 CHESTER ASHLEY Ex Parte. - - - where "the plaintiff might have costs in case of judgment in his "favor ;" and upon a careful examination and consideration of the - several statutory provisions relating to the subject, we are satisfied that the same rule, as to the question of costs, applies to and must govern-in actions prosecuted by or against the State. And in this respect the result must be the same, -without regard to the object for which the action is prosecuted ; be that what it may, the party succeeding is entitled to recover his costs, sUbject only to such exceptions as are provided for bY the statutes, none of which apply to, or embrace the case under consideration ; and of course, the successful party, upon the final adjudication of the case; will be entitled to a judgment for costs, against his adversary. But-the fee bill in question has been made out, while the action is still undetermined, by virtue of the 31st section of the 61st chapter of the Revised Statutes of this State, which provides that "all officers or witnesses entitled to fees by this law, for services \ rendered in any suit, matter or cgntroversy, depending in any court of record, may make out fee bills for such services, at the end of each term of the' court wherein the same is pending, charging the party at whose instance the Services- were rendered." The 32nd section of the same statute requires such fee bills to be examined by the clerk of . the court in.which the services werd rendered, and if found correct, to be certified by him, and delivered to the Sheriff of the proper comity,. to be by him collected. The language here -used .is very comprehensive, and unquestionably applies to the fees of the Clerk for services rendered in this case, but he is not warranted in charging in his fee bill Against the defendant any fee for-services rendered at the instance of the -plaintiff, as . he appears' to have done in the bill before us. It is also probable .that there may be.other illegal charges in the bill; yet some of the' items charged are legal and properly.made out ; and a fee bill; in some respects; corresponding with the final process for the -collection of costs. , We are . of .opinion . that it ought -not to. be . quashed because, there' are or ,: may• be found in it some•items illegally charged against Ashley,. to .whoni the law furnishes adequate 'redress. against the clerk, dn- a different way,- for-any charge illegally or 'improperly made thereinr—besides; ke . has it in his .. power -to correct any erronin the taxation,of costs
ARK.] CHESTER ASHLEY, Ex Parte. 65 against him by the clerk, by causing the same to be retaxed by, or under the direction of the court ; and where a fee bill . is issued in a case not authorized by law, it might, upon application, be superseded . , but a motion to quash would, even in such a case, be irregular. The motion is, therefore, overruled.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.