Uncollected costs: party making to pay. R. 3452. the plaintiff shall recover costs upon the issues determined in his favor, and the defendant shall recover costs upon the issues determinded in his favor. This section is applicable to a case | part, upon a counter claim: Arthur where plaintiff recovers on his de-. Funk, 22–238. mand, and defendant, in whole or in SEC. 2935. All costs accrued at the instance of the successful party which cannot be collected of the other party, may be recovered on motion by the person entitled to them against the successful party. SEC. 2936. The necessary fees paid by the successful party What included in procuring copies of deeds, bonds, wills, or other records filed as a part of the testimony, shall be taxed in the bill of costs. in. R. 3453. Same. SEC. 2937. Postage paid by the officers of the court, or by the parties in sending process, depositions, and other papers being part of the record by mail, shall be taxed in the bill of costs. SEC. 2938. When a pleading contains a defense stating matCost: allowed ter which arose after the commencement of the action, whether party who confess matter such matter of defense be alone or with other matter of defense which arose which arose before the action, the party affected by such matter after action. R. 3455. may confess the same, and thereupon shall be entitled to the costs of the cause as to the party pleading such matter up to the time of such pleading. On dismissal of action or R. 23456. SEC. 2939. When a plaintiff dismisses the action or any part thereof, or suffers it to abate by the death of the defendant or death of party. Other cause, or where the suit abates by the death of the plaintiff, and his representatives fail to revive the same according to law, judgment for costs may be rendered against such plaintiff or representative, and, if against a representative, shall be paid as other claims against the estate. Between co- When dismissed for want of juris- Clerk to tax. SEC. 2940. The co-parties against whom judgment has been recovered, are entitled as between themselves to a taxation of the costs of witnesses whose testimony was obtained at the instance of one of the co-parties, and inured exclusively to his benefit. SEC. 2941. Where an action is dismissed from any court for want of jurisdiction, or because it has not been regularly transferred from an inferior to a superior court, the costs shall be adjudged against the party attempting to institute or bring up the cause. SEC. 2942. The clerk shall tax in favor of the party recovering costs, the allowance of his witnesses, the fees of officers, the con:pensation of referees, the necessary expenses of taking depositions by commission or otherwise, and any further sum for any other matter which the court may have awarded as costs in the progress of the cause or may deem just to be taxed. This section authorizes the taxation, in addition to compensation for the services specifically mentioned, of a further sum for other matters, when deemed just, and it is not limited in its application to the apportionment of costs provided for by § § 2933, 2934. The cost of writing down the testimo ny by a person appointed by the court, on agreement of parties, may thus be taxed as costs: Kuhnlee v. Ind. Dist. of Charles City, 36-59. But the section affords no warrant for taxing up as costs any fee of officers except it is allowed by law: Sprout v. Kelly, 37-44. action is as SEC. 2943. In actions in which the cause of action shall, by When cause of assignment after the commencement of the action, or in any other signed. manner, become the property of a person not a party to the R. 23460. action, such party shall be liable for the costs in the same manner as if he were a party. R. 25461. SEC. 2944. Any person aggrieved by the taxation of a bill of Re-taxation. costs, may, upon application, have the same re-taxed by the court, C. 51, 1813. or by a referee appointed by the court, in which the application or proceeding was had, and in such re-taxation all errors shall be corrected; and if the party aggrieved shall have paid any unlawful charge by reason of the first taxation, the clerk shall pay the costs of re-taxation, and also to the party aggrieved the amount which he may have paid by reason of the allowing of such unlawful charges. supreme court. SEC. 2945. In cases of appeals from the district or circuit On appeals to court, the clerk shall make a complete bill of costs showing the R. 3462. items which shall accompany the record, and a copy of the same shall be placed upon the execution docket of the court below. supreme court: R. 23463. SEC. 2946. When the costs accrued in the supreme court and Clerk of the court below are paid to the clerk of the supreme court, he duty of shall pay so much of them as accrued in the court below to the clerk of said court and take his receipt for the same. SEC. 2947. On receiving such costs, the clerk of the court Duty of clerk below shall charge himself with the money upon his execution R. 23464. docket, and pay it to the persons entitled to the same. below. computed. SEC. 2948. When the judgment is for the recovery of money, Interest from interest from the time of the verdict or report until judgment be verdict to be finally entered, shall be computed by the clerk and added to the R. 3466, costs of the party entitled thereto. ATTORNEYS' FEES. [Eighteenth General Assembly, Chapter 185.] limited. SEC. 1. In any action upon a written contract for the payment Recovery of, of money, made after the taking effect of this act, in which it is an agreement to pay an attorney's or collection fee, no greater recovery for attorney's fee shall be had against the maker of such contract than is provided for in section two hereof, anything in said contract contained to the contrary notwithstanding. allowed. SEC. 2. When judgment is recovered on a written contract, Amount of, made after the taking effect of this act, containing an agreement to pay an attorney's fee, there shall be an attorney's fee allowed by the court, and taxed as a part of the costs, except as provided in sections three and four hereof; but in no case shall the amount allowed be greater than the following, to-wit: For the first two hundred dollars, or fraction thereof, ten per cent. of the amount found due. For the excess of two hundred dollars, up to five hundred dollars, five per cent. For the excess of five hundred dollars, up to one thousand dollars, three per cent. For all in excess of one thousand dollars, one per cent; provided, that the plaintiff shall be entitled to recover not to exceed one-half of the above collection fee in case payment is made after commencement of suit and before In case of payreturn day, and in case of payment before judgment and after return day. return day, the plaintiff may recover not to exceed three-fourths Before judg ment before ment. Division of fee not allowed. of the said amount and have judgment therefor; and no fee shall be allowed if suit has not been commenced or expense incurred. SEC. 3. Before any allowance of attorney's fee shall be made by the court, the court shall be fully satisfied by affidavit of the attorney engaged in the cause, which affidavit shall be filed with the original papers, that there has been and is no agreement expressed or implied, between the attorney and his client, or between the attorney and any other person, except a practicing attorney engaged with him as attorney in the cause, for any division Fee only taxed or sharing of the fee to be taxed; and no fee shall be taxed except in favor of a regular attorney, and in compensation for services. actually rendered in the cause. in favor of regular attorney. Not allowed unless defendant had opportunity to pay. SEC. 4. Before any attorney's fee shall be allowed by the court, the court shall be fully satisfied that the defendant, if he be a resident of the county and the suit is not aided by an attachment, had information of the whereabouts of the contract, and had a reasonable opportunity to pay the same before suit was brought. But this provision shall not apply when the contract is by its terins payable at a particular place, and the maker of the contract has not tendered the money due at the place named in the contract. TITLE XVIII. OF ATTACHMENTS, EXECUTIONS, AND SUPPLE- CHAPTER 1. OF ATTACHMENTS AND GARNISHMENT. tached. SECTION 2949. The plaintiff in a civil action may cause any Property at property of the defendant which is not exempt from execution R. 23172. to be attached at the commencement or during the process C. 51, 1846. of the proceeding, by pursuing the course hereinafter prescribed. An attachment may issue in an equitable proceeding as well as in an action at law: Baldwin v. Buchanan, 10-277. fendant may be attached, it being shown that the resident defendants are insolvent: Smith v. Coopers, 9376. Also, held, that in an action against several defendants, the plaintiti might have an attachment against any as to whom there were proper grounds therefor, without regard to whether there were any grounds as to the others or not, (overruling Courrier v. Cleghorn, 3 Gr. 523; OgilWhere there are several defendants, vie v. Washburn, 4 Gr. 548): Chitthe property of a non-resident de-tenden v. Hobbs, 9-417. The action may be regarded as commenced, within the meaning of this section, as soon as the petition is filed, and before notice is placed in the hands of the sheriff, or served, as specified in § 2532: Hagan v. Burch, -309. SEC. 2950. If it be subsequent to the commencement of the separate petiaction, a separate petition must be filed, and in all cases the tion. pro- R. 3173. ceedings relative to the attachment are to be deemed independ- C. 1, ¿ 1847. ent of the ordinary proceedings and only auxiliary thereto. A separate petition need not be filed when an attachment is sought at the commencement of the action: Van Winkle v. Stevens, 9-264; Shaffer v. Sundwall, 33-579. If the amount due is stated in the body of the petition, it need not be repeated in that part asking a judgment: Shaffer v. Sundwall, 33–579. SEC. 2951. The petition which asks an attachment must in cases be sworn to. It must state: 1. That the defendant is a foreign corporation, or acting such; or, 2. That he is a non-resident of the state; or, 3. That he is about to remove his property out of the state without leaving sufficient remaining for the payment of his debts; or 4. That he has disposed of his property, in whole or in part, with intent to defraud his creditors; or, 5. That the defendant is about to dispose of his property with intent to defraud his creditors; or, state. C. 51, 1818. 13 G. A. ch. 161, 21. Issued and 6. That he has absconded, so that the ordinary process cannot be served upon him ; or, 7. That he is about to remove permanently out of the county and has property therein not exempt from execution, and that he refuses to pay or secure the plaintiff; or, 8. That he is about to remove permanently out of the state, and refuses to pay or secure the debt due the plaintiff; or, 9. That he is about to remove his property, or a part thereof, out of the county with intent to defraud his creditors; or, 10. That he is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors; or, 11. That he has property or rights in action which he conceals; or, 12. That the debt is due for property obtained under false pre tences. The averments of the grounds of attachment are not a part of the petition in the sense that they can be demurred to. If they are insufficient, a motion to dissolve the attachment is the proper remedy; if inconsistent grounds are alleged, the plaintiff may, on motion, be required to elect between them: Holloway v. Herryford, 9-353. Two or more causes for attachment may be stated, but they cannot be stated in the alternative: Stacy v. Stichton, 9-399; and see § 3021. If the petition is actually sworn to, the fact that the jurat is not signed by the officer administering the oath, will not invalidate subsequent proceedings: Cook v. Jenkins, 30-452. Where the cause of attachment, as alleged is insufficient, an amendment made, after the writ is issued, which does not show that the cause therein alleged, isted at the time of the issuance of the writ, will not cure the defect: Bundy v. McKee, 29-253. The allegation that defendant is "not now an inhabitant of this state" is equivalent to saying that he is a 'non-resident of the state": Wiltse v. Stearns, 13-282. In asking a judgment under ¶3 it is not necessary to aver an intention to defraud creditors: Branch, etc., Bank r. White, 12-141. In such case no actual fraud need exist (explaining previous cases under Code of '51): Mingus v. McLeod, 25–452. The removal contemplated in ¶ 3 is a permanent one. That defendant is about to remove property for a temporary purpose, is not ground for attachment: Warder v. Threlkeld, 52134. The allegation that defendant has disposed of his property, in part, with intent to delay and hinder creditors, and prevent and defeat them from the collection of their claims," is not sufficient to bring a cause within 4; an intention to defraud must be alleged: Torbert v. Tracy, 12-20. That defendant is absenting himself from the state, does not alone constitute an absconding: The State v. Morris, 50–203. SEC. 2952. Where the petition states, in addition to the other facts required, that the plaintiff will lose his claim unless the attachment issues and is served on Sunday, it may be issued and 10 G. A. ch. 14. served on that day. served on Sunday; when. On contract SEC. 2953. If the plaintiff's demand is founded on contract, the petition must state that something is due, and, as nearly as practicable, the amount, which must be more than five dollars in order to authorize an attachment. A writ of attachment should be quashed when the petition therefor does not state that something is due, and as nearly as practicable the amount due: Blakley v. Bird, 12-601, Kelley r. Donnelly, 29-70. When the plaintiff's claim is not founded on contract, he is not required to state in his petition the amount due: Sherrill v. Fay, 14-292; but if founded on contract and not in tort, this section applies, although the damages are not settled or liquidated by such contract: Lord v. Gaddis, 6–57. |