Practice — Taxation of Costs — Fees of Referees.
No part of the costs of an action can be taxed against the party recovering judgment.
Therefore, when the plaintiffs recovered judgment in the Court below and it was ordered that an allowance be made to the Clerk for stating an account, one half to be paid by the plaintiffs and the other half by the defendants; Held, to be error.
BYNUM, J.
Upon the trial of the case, judgment was entered in favor of the plaintiffs and against the defendants for the debt and the costs of the action. It was further ordered by the Court, that D. Stewart, the Clerk, be allowed $250 for taking and stating the account, one half to be paid by the defendants and the other half by the plaintiffs.
There is error. The Clerk, as Clerk, is entitled to no fees or allowance for taking and stating an account by order of the Court. Bat. Rev. ch. 105, § 28. If the account was taken by him as referee, under C. C. P. § 245, as we think it was, then the fees therefor are fixed and determined by C. C. P. § 285. They then become a part of the costs, and are to be inserted in the judgment. C. C. P. § 283. The party prevailing in the action is entitled, as a matter of law, to recover full costs of the other party, unless in cases otherwise provided for.
This case does not fall within any of the statutory exceptions, but is governed by the provisions of C. C. P. § 287, and further explained and confirmed by C. C. P. §§ 276, 277 and 343.( v.)
The plaintiffs, therefore, having recovered judgment, no part of the costs can be taxed against them, but they are to be taxed against the defendants and include the fees of referees.
Error.
PER CURIAM. Judgment reversed.