Burnham v. Hays

Wells, Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred.

Upon an examination of this case, on rehearing, I am satisfied that the decision heretofore rendered by this court by my associates was correct, and should be adhered to.

The court below, in allowing the plaintiff to amend his bill of costs, and the affidavit accompanying it, exercised a legal discretion which it was competent for it to do, by virtue of the 68th section of the Practice Act, and the defendant cannot say that such discretion was abused, inasmuch as it resulted to his benefit by the reduction of the amount of charges against him. Nor can it be said that the allowing of such amendments was an enlarging of the time fixed by statute for the delivering of the memorandum and affidavit to the clerk. The original memorandum and affidavit were delivered within the time specified, and the filing of the amendments related back to the time of filing the originals, of which they merely formed a part. This was not an enlarging of the time such as was contemplated by the de[119]cisión in the case cited from 5 Wendall, and therefore the rule in that case does not apply.

If the original affidavit was a nullity, and the defendant intended to take advantage of it, he should have treated it as such, and have taken proper steps to set aside the judgment, or appealed therefrom, on the ground that the costs had been waived by operation of the statute; but having moved for a retaxation of the costs, and the bill being, upon his own motion, before the court for that purpose, it was proper that such order should be made, and such amendment allowed, as in the discretion of the court was just and necessary in the premises.

It is objected that the amended affidavit is equally void, it not having been sworn to by the party, as required by the statute, but by one of his attorneys, and we are referred to several other sections of the Practice Act, to show, that in every instance where an oath is not made by the party himself, the statute expressly authorizes some other person to make it; but this fact, instead of sustaining the objection, affords a good reason why, in this instance also, the affidavit may be made by some person other than the party, by his attorney, or some one else, in his behalf, who had knowledge of the facts. In construing the statute, we must consider the sections together, and that interpretation should be placed upon the language which will give the particular section utility and effect, and which at least will make it compatible with common sense, and the plainest dictates of justice. Such a construction as the defendant would have placed upon it would render this section in most cases impracticable ; in many, unjust; in some, inoperative and nugatory, and in all, inconvenient. It would deprive an absent or nón-resident party entirely of his right. Indeed, it would operate as a denial of such right to every party, unless he was prepared to swear to a bill of costs, of the correctness of which he could seldom by any possibility have the remotest personal knowledge. The fees and disbursements expended in the preparing of a cause for trial, and in the trial and general management of it, are almost universally paid out by the attorney; and how can another party be supposed to know what amounts are thus paid ? It would be a novel thing to require a party in all cases to swear to the cor