vs.
Barett
Habeas Corpus.
Motion to retry[?].
On the motion of the writ in this case before the Judge the defendants interposed his plea of former adjudications
The plea was held good and the writ discharged
In taxing the cost the defendants included therein Attorneys for [] $10.50
The plaintiff have filed his motion to stike this [?] from the bill
sec[?] 459 provides "that case shall be allowed to the party in whose favor a judgment is rendered excepting
sec [?] 467 when allowed to either party, case to be called the Attorney for shall be as follows.
In all actions [?]
It would seem that it was intended by the Defendants[?] that case should be allowed only in actions but looking at sec[?] 458-464-465 we may reach the conclusion that cases shall be allowed to the party in whose favor a judgement is rendered and that the prevailing party shall be allowed for all necessary disbursments including fees of officers, witness fees
The disbursments shall be stated in detail verified by affidavit and filed.
Now it is clear that the Atty for is no part of these disbursments. for the statue declares that these disbursments are to be allowed in addition to the allowance as provided in sec[?] 464.
There may be and is some question as to what was intended by the provisions
of section 404. The words are "when allowed to either party" vs. the Attorney fee in all actions shall be $5
If we [?] this to mean this to wit; where [?] are allowed to either party vs that sec[?] 458 is of no effect because that section declares that costs shall be allowed to the party in whose favor a judgement is rendered $5
Would it not be the more reasonable [?] to render the [?] [?] this
458 costs shall be allowed to the party in whose favor a judgement is rendered
464 and when attorneys fees are allowed to either party the fee shall be $5
465 and the prevailing party shall be allowed his necessary disbersments in addition to this Attys fee these disbersments shall include the officers cost $5
This said of the law would leave it in the disorder[?] of the court to allow Attys fee or not in the obscure of special evidence
But sec[?] 477 mandates[?] that in all actions and proceedings other than those mentioned when no promise is made. Costs may be allowed or not and if allowed may be opporutioned in the discretion of the court
As a ground rule Court Attys fees are not part of the costs in any case.
It is only by reason of the statute that they are taxable in any case and hence a party to be entitled thereto mostbeing himself within the provisions of such statute
I am of opinion that Sec[?] 464 is applicable to the trial to have in open court. of herein
and that by section 477 it is in the discretion of this court to allow or not allow costs in all proceedings in [?] and in the exercise of this discretion. I am not of opinion that this is such a proceeding as will warrant me in requiring the Plaintiff to pay a counsel fee to the Defendant in addition to the other costs.
the motion will be sustained
JR Suirs
Judge
