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$ 510. Filing of, and affidavit to, bill of costs. [1855.] The party in whose favor judgment is rendered, and
N. Y. Code, 310.
1. After a judgment is entered, and the record completed, the Clerk has no power to fill up the blank lett for costs. His authority terminates with the entry of the judgment, and the Court alone, on motion to amend, is competent to relieve where costs are omitted. Chapin v. Broder, 16 Cal. 403.
5. To entitle the plaintiff to charge the executor or administrator with the costs of an action, he must establish to the satisfaction of the Court : first, that the demand was unreasonably neglected; or second, that it was unreasonably resisted; ar third that the datendant safnaad ta mbas shoes
Amendment to Sec. 509.—Passed April 25th, 1863.
[Taken effect sixty days after passage.]
On the commencement of an action, the plaintiff, and on the filing of notice of appeal from final judgment, the appellant, shall pay to the Clerk three dollars, to be applied to the payment of the salary of the Judge of the Court in which the payment is made. Each ('lerk shall keep a true and accurate account of all moneys so received, and shall pay over the same at the end of each month to the Judge of such Court, taking duplicate receipts for each payinent, one of which shall be filed by the said Clerk in his office. On the first day of each month the said Clerk shall deliver to the Auditor of the county an account of all sums received, specifying the cases in which received, and of all suns paid out. At the same time, a like account shall be made out and forwarded by such Clerk to the Controller of State of the sums paid into the District Court, and of the sums paid out, with the other receipts of said Judge therefor. It shall be the duty of the District Attorney,
. at the commencement of each month, to examine the books of sail Clerk, and if found correct in the amount paid to the District Judge, he shall make and execute a certificate to such Controller to that effect; and if said books shall be found correct in the amount paid to the County Judge, the said District Attorney shall in like manner make and execute a certificate to the County Auditor to that effect. In paying the salary of any District Judge, the Controller shall deduct the amount paid to such Judge, as shown by his receipt; and in like manner the County Auditor, in paying the salary of any County Judge, shall deduct the amount to such Judge as shown by his receipt.
the commencement of each month, to examine the books of said Clerk, and if found correct, he shall make and erecute a certificate to such Controller to that effect. In paying the salary of any of the said Judges, the Controller shall deduct the amount paid to such Judge, as shown by the receipt of such Judge.
$ 510. Filing of, and affidavit to, bill of costs.
[1855.] The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the Clerk of the Court, within two days after the verdict or decision of the Court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attomey, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding
1. Where costs on appeal to the Supreme Court are not entered on the judyment docket in the Court below, they do not become a lien on property until the levy of an execution. Chapin v. Broder, 16 Cal. 403.
2. The New York cases do not apply, because there, costs are taxed by the Clerk, on notice to the adverse party; but no time is fixed within which the notice must be given, and the costs are not waived hy failure to give it. Id.
3. Under the Practice Act, as it stood in 1854, a party who failed to file with the Clerk a memorandum of costs within the time limited, waived his right to costs, > whether they were Clerk's and Sheriff's fees or other costs. Id.
4. If the Clerk's and Sheriff's fees were inserted in the judgment, when not so claimed, the judgment is so far a nullity, and may be attacked collaterally. Id.
5. Section tive hundred and ten of the Code, which provides that the party who obtains a judgment shall, within ten days after the verdict or judgment, tile with the Clerk his bill of costs, does not apply to costs on appeal to the Supreme Court. Gray v. Gray, 11 Cal. 341.
6. Where the original bill of costs is filed within the time prescribed by the act, an amendment allowed after the time relates back to the time of filing the original of which it forms merely a part. Burnham v. Hays, 3 Cal. 115.
7. The affidavit by the attorney of the party accompanying the bill of costs is good under the statute. Id.
8. If the original affidavit was a nullity, the defendant should have taken proper steps to set it aside, or have appealed from the judgment, on the ground that the costs had been waived by operation of the statute. Id. 9. For amendment or retaxation of costs, sec la.
$ 511. Interest and costs shall be included by the Clerk in the judgment.
[1861.] The Clerk shall include in the judgment entered up by him any interest on the verdict, or decision of the Court, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained; and he shall, within two days after the same shall be taxed or ascertained, if not included in the judgment, insert the same in a blank, left in the judgment for that purpose, and shall make a similar insertion of the costs in the copies and docket of the judgment.
N. Y. Code, $ 310.
1. After a judgment is entered, and the record completed, the Clerk has no power to fill up the blank left for costs. His authority terminates with the entry of the judgment, and the Court alone, on motion to amend, is competent to relieve where costs are omitted. Chapin v. Broder, 16 Cal. 403.
$ 512. Where plaintiff is a nonresident, or foreign corporation, defendant may require security for costs.
When the plaintiff in an action resides out of the State, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the Clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the Court or Judye, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed.
N. Y. Code, \ 303.
1. Where defendant, December 19th, under sections five hundred and twelve and five hundred and fourteen of the Practice Act, served on plaintiff, a nonresident, notice to give security for costs, the notice not being accompanied with an order staying proceedings, and on the next day judgment was rendered for defendant, and plaintiff appealed to the Supreme Court: Held, on motion to dismiss the appeal, that, after judgment, it was too late to move to disiniss the action; that the undertaking on appeal is sufficient security for costs subsequently incurred, and that the motion must be denied. Comstock v. Clemens, 77.
2. The defendant has the right to security for costs only, where all the plaintiffs are nonresidents. Ten Broeck v. Reynolds, 13 How. Pr. 462.
3. A foreign Government suing in a Court of the State, may be required to file security for costs. Republic of Vlerico v. Arrangois, 3 Abbott, 470.
4. Where plaintiffs have once put in security for costs required by statute, they cannot be ordered to file new security, although the security on the original undertaking became insolvent. Hartford Quarry Co. v. Pendleton, 4 Abbott, 460.
5. A plaintiff who is a nonresident at the time of commencing his action, is not excused from filing security for costs by the fact that he afterwards became a resident. Ambler v. Ambler, 8 Id. 340.
§ 513. Justification of sureties on undertaking for costs.
Each of the sureties on the undertaking mentioned in the last section, shall annex to the same an affidavit that he is a resident and householder or freeholder within the county, and is worth double the amount specified in the undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution.
$ 514. If such security be not given, the action may be dismissed.
After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the Court or Judge may order the action to be dismissed.
OF MOTIONS, ORDERS, NOTICES, SERVICE OF PAPERS, AND MISCEL
Sec. 515. Order and motion, defined.
516. Motions, where to be made.
wise. 521. Service may be made by mail when the persons reside
in different places. 522. Manner of service by mail. 523. Appearance. Notices after appearance. 524. Service on nonresidents. Where a party has an
attorney, service shall be on such attorney. 525. Successive actions on the same contract, etc. 526. Consolidation of several actions into one. 527. Adverse claims, actions may be brought to determine. 528. The Clerk shall keep a register of actions. 529. Two of three referees, etc., may do any act. 530. Computation of time in this Act. The time within
which any act is to be done may be extended. 531. Papers without title of the action, or with defective
title, may be valid. 532. Limitation of actions which have arisen in another
§ 515. Order and motion, defined.
Every direction of a Court or Judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.
N. Y. Code, $ 400.
1. When the statute speaks of notice of a motion, it means written notice, or notice in open Court, of which a minute is made by the Clerk. Borland v. Thornton, 12 Cal. 440.