CLARK v. BARBER

CLARK v. BARBER. Foreign Judgments; Objections, When a Party is Estopped to Make; Variance; Costs, Taxation oe; Concdusiveness oe Taxation oe Costs on Foreign Judgment. 1. In an action on a foreign judgment pronounced in open court on May 3, 1894, but not signed and entered of record until June 18, 1894, where the plaintiff on a former trial to meet an objection of the defendant that the judgment should have been declared on as of May 3, instead of June 18, amended his declaration accordingly, the defendant will not be heard on a subsequent trial to object that the judgment should have been declared on in the amended declaration as of June 18. 2. An objection by the defendant, in an action on a foreign judgment, that the judgment sued on was not a final one, in that it provided that the costs should be thereafter taxed by the clerk, is untenable, as the taxation of costs is a mere clerical matter, incidental to and not an essential part of the judgment; following Adrianee v. Heiskell, 8 App. D. C. 240; especially where the record of the foreign proceedings shows that the costs were actually taxed and entered on the judgment record subsequent to the date of the judgment. 3. In an action on a foreign judgment for a specified sum and costs, in the transcript of the record of which is included a certificate of ¡taxation of the costs, it is not error to refuse to allow the defendant to testify that the costs were erroneously taxed; as the record speaks for itself and cannot be contradicted or amended in that way. No. 1175. Submitted January 23, 1903. Decided February 4, 1903. Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia in an action on a foreign judgment. Affirmed. The Court in the opinion stated the case as follows: • Joseph P. Barber, trustee, as plaintiff below, recovered a judgment against Jacob P. Clark, in an action upon a judgment of the Common Pleas Division of the High Court of JUstice of Ontario, Canada, and the defendant has appealed. It appears from the transcript of the proceedings in the Canadian court that the action had been commenced to compel Clark to account for his administration of a trust. On May 5, 1891, an interlocutory order was entered referring the matter to the master for inquiry and report. The master reported, and on December 16, 1893, on his recommendation, Barber was appointed trustee in the place of Clark, and, pending exceptions to the account, Clark was ordered to pay over to Barber the sum of $5,000, but without prejudice to his rights upon the hearing. Because of objections to the decree sued on, on account of variance, and because it is not final, it is here set out in full as recorded in the transcript: “(Final Judgment on Further Directions.) “ In the High Court of Justice, Common Pleas Division. “ Before the Honorable Mr. Justice Street. “ In Court, Thursday, the 3rd Day of May, A. D. 1894. “ Between— “ James Barber, Agnes P. Hutton, and Isa- ' bella J. Cross, Plaintiffs, “ and “ Jacob P. Clark, Defendant. “(Law stamp, $1.60.) “[l. s.] “ This action coming on this day to be heard before this court on further directions and as to the question of costs in the presence of counsel for the plaintiffs and defendants and upon hearing read the pleadings in this action, the reporter’s notes of the proceedings at the trial and the judgment of reference thereupon ordered under date the 30th day of April, 1891, the order made herein by the local judge of this court at Brampton on the 30th day of October, 1891, extending the time for tbe making of tbe master’s report under tbe said judgment and tbe subsequent order made herein by tbe Hon. Mr. Justice Falconbridge in court on tbe 9th day of December, 1891, witb tbe affidavits of William H. Cross, James Oscar Hutton and Benjamin Franklin Justin (2) filed upon tbe said application and tbe further orders extending tbe time for tbe making of tbe said master’s report made herein in court on 2nd day of February, 1892, and on tbe 26th day of April, 1892, and tbe report of tbe master herein dated tbe 30th day of June, 1892, and tbe orders made herein upon appeal from tbe said report dated respectively tbe 16th day of September, 1892, and tbe 24th day of February, 1893, by tbe latter of which orders tbe said report of tbe master is amended as in tbe said order shown and a reference back directed to fix tbe remuneration which tbe defendant ought to receive in respect of bis services under tbe will in tbe pleadings mentioned and also tbe subsequent-report of tbe said master bearing date tbe 14th day of October, 1893, and tbe order on appeal therefrom dated tbe 13th day of April, 1894, and also tbe affidavits of Allen Bristol Aylesworth and of Benjamin Franklin Justin filed on behalf of tbe plaintiffs upon this application witb tbe exhibits in tbe said affidavits referred to and tbe affidavit of William Laidlaw filed in answer and tbe exhibits in tbe said affidavit referred to and upon bearing what was alleged by counsel aforesaid. “ 1. This court doth order and adjudge that tbe defendant do forthwith deliver over to Joseph Barber, tbe trustee of tbe estate of Jessio Barber named in tbe above-mentioned order made herein on tbe 16th day of September, 1892, a certain promissory note for tbe sum of $1,000 made by tbe above-named plaintiff James Barbour, and which is referred to in tbe report of tbe master aforesaid, dated tbe 30th day of June, 1892. “ 2. And this court doth further order and adjudge, that tbe defendant do pay to tbe said Joseph Barber as such trustee as aforesaid tbe balance in bis bands of tbe trust funds of tbe said estate being tbe sum of $7,423.50 witb interest thereon from the 30th day of June, 1892, bnt deducting from the said amount the sum of $5,000 paid by the said defendant to the said Joseph Barber on the 6th day of October, 1892, and the further sum of $500 similarly paid on the 13th day of October, 1892, with interest on the said sums of $5,000 and $500 from the date of their respective payments. “ 3. And this court doth further order that upon the taxation of costs in this action the taxing officer do allow and tax to the defendant such costs as he would be entitled to had he presented an ordinary unopposed petition to the court asking his discharge and the appointment of a new trustee in his stead, and of passing his accounts of his dealings with the estate in question, also the costs of supporting upon the reference herein any items unsuccessfully objected to by the plaintiffs in the said accounts and also of successfully contesting on the said reference any items of the plaintiff’s surcharge to the defendant’s said accounts; the said costs to be taxed between solicitor and client, and to be paid out of the estate in question or set' off as the case may be. “ 4. And this court doth further order that the defendant do forthwith after taxation thereof pay to the plaintiffs their costs of this action down to and inclusive of the hearing, together with the costs of the several orders extending the time .for the master to make his report, including the costs of the application upon which the order of 9th December, 1891, was made, also the costs of the reference back to the said master under the order of the 24th. of' February, 1893, including the costs of the appeal from the report of the 30th day of June, 1892, so far as the same related to the remuneration allowed to the defendant, together with the general costs of the reference before the said master (except the costs hereinbefore specified as taxable to the defendant) but-including the costs of supporting any items of the surcharge as to which plaintiffs succeeded and of attacking any items of defendant’s account to which they successfully objected, and the costs of this motion. tc On the motion of Mr. Aylesworth, Q. O., of counsel for the plaintiffs. “ By tiie Court. “ The costa of the plaintiffs under the above judgment have been taxed and allowed at the sum of $848.30 as appears by a'taxing officer’s certificate dated the 26th day of November, A. D. 1895. “(S’g’d) J. A. Austin, "Local Registrar at Brampton. “ Judgment signed the 18th June, 1894: “(S’g’d) A. F. McLean, "Cl’Jc Weekly Ot. “(S’g’d) J. A. Austin, "Local Registrar at Brampton. “Judgment entered the 18th June, 1894, in Judgment Book of H. O. J., folios 150, 151, 152. “(S’g’d) J. A. Austin, "Local Registrar at Brampton ” The authentication of the record is in due form and is omitted. Mr. Clarence 14. Brandenburg, Mr. Edwin O. Brandenburg and Mr. F. Walter Brandenburg for the appellant: 1. It is submitted that as between the date of May 3, upon which plaintiff below declared, and June 18, the date the transcript shows judgment was entered, the prior date related merely to an interlocutory step in the proceedings, and accordingly there being a variance between the date in the declaration and the transcript introduced in evidence, the court erred in overruling defendant’s objections thereto. Gulick v. Loder, 14 N. J. L. 572; Howard v. Cousins, 7 How. (Miss.) 114; Silver Lake Bank v. Hardin, Wright (Ohio), 430; Piggott on Foreign Judgm., p. 54; Freeman on Judgm., Sec. 1; Greenl. Ev. (14th ed.), Sec. 70. 2. The transcript offered in evidence was not a complete transcript, and the judgment therein was not final since the record failed to disclose the taxation of costs in favor of the defendant below. The costs of the plaintiff below ar'e here taxed and made a part of the judgment, but such is not true of the defendant’s costs. In other words the clerk has arbitrarily nullified that portion of the decree adjudging costs to the defendant, by neglecting to tax the costs to which he was entitled, and accordingly the record is incomplete, and until they are taxed it is not final, since the rights of the parties are not therein settled. Re Henderson, 15 App. Cas. 1, 10; Black on Judgm. (ed. 1891), Sec. 3, p. 8; People v. Pirfenbrink, 96 Ill. 68; Boyken v. State, 3 Yerg. (Tenn.) 426; Chapin v. Broder, 16 Cal. 403; Richardson v. Rogers, 37 Minn. 461; Hays v. May’s Heirs, 1 J. J. Marsh. (Ky.) 498; Keystone Iron Co. v. Martin, 132 U. S. 93; Young v. Smith, 15 Pet. (U. S.) 287; Lodge v. Twell, 135 U. S. 232. The general rule is that where a copy of the record of a judgment is required, it must be of the whole record so that the court may determine the legal effect of the whole of it which might be quite different from that of a part. Black on Judgm., Secs. 877, 961, p. 125; Vail v. Iglehart, 69 Ill. 332, 335; Edmiston v. Schwartz, 13 Serg. & R. (Pa.) 133; Brown v. Eaton, 98 Ind. 595; Pepin v. Lachenmeyer, 45 N. Y. 27, 32; 1 Whart. Ev. 824; Freeman on Judgm., Sec. 412; McMillan v. Ritchie, 2 Allan (N. B.) 242; 2 Black on Judgm., Sec. 845. Furthermore, the court having ordered the taxation of appellant’s costs, any judgment entered upon such order is necessarily incomplete until this has been done, or some showing is made that the question has been disposed of by the proper court officer, as is stated by Black, Sec. 143, p. 142. Bock v. Little, 24 Miss. 463; Reid v. Dunlin, 5 Ala. 205; Mitchell v. Gesendorff, 44 Ind. 358. Mr. W. H. Sholes and Mr. Hayden ’Johnson for the appellee. [MAJORITY — Mr. Justice Shepard] Mr. Justice Shepard delivered the opinion of the Court: 1. The transcript shows that the judgment was pronounced in open court on May 3,1894, but was not signed and entered of record until June 18, 1894. Wien offered in evidence, tie defendant objected on tie ground of variance in that it was declared upon as rendered May 3, when in fact it lad been rendered on June 18, 1894. Tie exception to tie admission of tie proof contains the following recital: “ Tie presiding justice upon consideration tlat tie defendant lad theretofore, at a former trial of tlis cause lad February 26, 1900, objected tlat there was a variance between the said transcript and the plaintiff’s amended declaration filed in tlis cause on tie 18tl day of March, 1897, which amended declaration declared on a decree of tie High Court of Justice — Common Pleas Division, signed and entered on tie 18th day of June, 1894, whereas tie final decree was signed on tie 3d day of May, 1894, which objection of the said defendant was then sustained, and tie plaintiff amended his declaration to conform to tie objection of tie defendant and tie ruling of the court, overruled said objection and allowed tie transcript to be read.” We are of tie opinion tlat tie court was right in overruling tie objection for tie reasons given. Having induced the court on a former trial to rule tlat tie judgment should lave been pleaded as of May 3, 1894, instead of June 18, and tie plaintiff laving conformed to tlat ruling by amending bis declaration to meet tie objection, tie defendant ought not now to be heard to complain of an error, if in fact it be one, tlat was tie result of lis own suggestion and persuasion. 2. Tie second assignment of error is founded on tie objection that tie judgment sued upon was not final. We are of opinion tlat it lacked no substantial element of finality. Every essential question at issue was effectually disposed of, including tie award of costs. Tlat these costs lad to be taxed by tie clerk or master, according to tie terms of tie decree, is immaterial. Tie taxation of costs is incidental to the decree and not an essential part of it. Adriance v. Heiskell, 8 App. D. C. 240, 245. As was said in tlat case: “ Indeed it not infrequently happens tlat judgment is rendered for some specific sum found to be due and for costs thereafter to be taxed by tie clerk, such taxation of costs being merely a clerical matter to be performed by the clerk rather than the court.” Moreover, the transcript, the exemplification of which bears the final date of March 2,1897, shows that the costs adjudged to the plaintiff had been taxed and certified by the taxing officer on November 26, 1895, and then entered on the judgment record. 3. It is to be presumed that the taxing officer obeyed the explicit directions contained in the decree and certified the balance of costs due by the defendant, after making the required allowances for him and setting them off against those adjudged to the plaintiff. It was not error, therefore, as has been contended under the last assignment, to refuse to permit the defendant as a witness to testify to the amount of costs due him and show that the same had not been properly entered to his credit in the certificate of taxation. The record speaks for itself and cannot be contradicted, or amended in that way. Having found no error in the proceedings on the trial, the judgment will be affirmed, with costs. It is so ordered. 'Affirmed.