On appeal from the First District Court of Jersey City.
For the plaintiff-respondent, Harry Kay.
For the defendant-appellant, Joseph Moritz.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. The action is in debt for costs awarded by the Court of Errors and Appeals upon an appeal from an interlocutory decree of the Court of Chancery. The state of demand counted upon two bills of costs taxed in the Court of Errors and Appeals in the aggregate sum of $62.01. The defendant below, appellant here, filed a counter-claim. The judge of the District Court, sitting without a jury, awarded
the plaintiff the full sum sued for and struck the counter-claim.
Chapter 232 (Pamph. L. 1932), an amendment of section 60 of the District Court act, requires that a counter-claim shall be filed with the clerk and served on the opposite party or his attorney at least two days before the trial, and that in default of service so made the counter-claim shall not be considered on the trial of the cause. Plaintiff denied at the trial that the counter-claim had been served and moved to suppress under the statute. Defendant's attorney stated orally and informally that he had mailed the counter-claim to plaintiff's attorney several days earlier, but there was no assertion of other service and there was no proof of the alleged mailing or the details thereof. It may be gathered from oral assertions by appellant's attorney appearing in the transcript that there was a copy of the counter-claim in the hands of the respondent's attorney at the trial; but assertions of this character do not take the place of proof, and even if they did, those now referred to do not set up a compliance with the statute. The counter-claim was properly struck.
The general rule seems to be that in the absence of enabling statutes the collection of costs is incidental to the progress of the cause from which they arise and is accomplished by incorporation within the judgment or the execution, or by an ancillary order of the court in which the action lies. See the discussion, and cases cited, in 15 C.J. 298, §§ 733 et seq.
But the assumption runs through the cases that where the judge of that court will not or may not reduce the costs to judgment an action either in assumpsit or debt will lie. In accord with that practice is the decision of this court in Cole v. Lunger, 42 N.J.L. 381, that a justice of the peace, sitting in the small cause court under the statute for the trial of claim to property, had the authority to tax costs but not to render judgment for the costs or award execution for their payment, and that if the party liable did not make voluntary payment, the only remedy, and therefore the proper remedy, was by an action of debt on the order to pay. So, also, Baird v. Johnson, 14 Id. 120.
The costs sued upon were taxed, not upon a final disposition of the litigation, but upon an appeal from an interlocutory order in Chancery, and the recipient of the bill of costs on that appeal was not the successful party on the final outcome. Had the allowance been in Chancery on an interlocutory order, it seems that attachment would lie (Aspinwall v. Aspinwall, 53 N.J. Eq. 684, 687); so, also, seems to be the practice in the Supreme Court. Ritter v. Kunkle, 39 N.J.L. 618. But here the bill of costs was taxed in the Court of Errors and Appeals (Practice act, section 245; 3 Comp. Stat., p. 4127; rule No. 41, Court of Errors and Appeals) and the appellant makes no practical suggestion, supported by citation of ...