Eads v. Couse, 35 Ill. 534 (1864)

April 1864 · Illinois Supreme Court

35 Ill. 534

John Eads v. Alfred Couse.

1. Costs op successful pabtt—by what process. A fee-bill cannot issue against the unsuccessful party in a suit for the costs made by the successful party, and for which the latter has obtained a judgment. The only mode by which the successful party can recover his costs is by an execution.

2. Fee-bill —for what costs it may be issued. A fee-bill may be issued against a party to collect the costs due from him to the officers of court, &c., without regard to the result of the suit; but the clerk has no authority to issue that kind of process to enforce a final judgment.

3. Vom process —proceedings under it void. If a fee-bill should be improperly issued against the unsuccessful party for costs made by the successful party, it is void, and all proceedings under it are without authority.

Appeal from the Circuit Court of Knox County; the Hon. Charles B. Lawrence, Judge, presiding.

In a suit brought by appeal into the Circuit Court, wherein Alfred Couse was plaintiff, and John Eads and another were defendants, the latter obtained a judgment against Couse for costs. Thereupon the clerk issued a fee-bill against Couse for the costs of both parties, which came to the hands of the sheriff, and was by him levied upon a lot of corn belonging to Couse. A sale was had, Eads became the purchaser, and took the com into his possession. Couse brought his action of trover against Eads to recover for the corn so taken. Eads justified the conversion of the corn as his property under the sheriff’s sale. A trial of the action of trover resulted in a verdict for the plaintiff. A new trial was refused, and judgment entered upon the verdict. The defendant thereupon took this appeal. The only question presented, is, whether the fee-bill was properly issued for the costs of Eads, who had recovered a final judgment for the same.

Messrs. Douglass and Craig, for the appellant.

Mr. A. Tyler, for the appellee.

Mr. Justice Beckwith

delivered the opinion of the Court:

The clerk of the Circuit Court had no authority to issue a fee-bill against Couse for the collection of Eads’ costs. Eads had recovered a final judgment, and the only mode of collecting his costs of Couse was by an execution. Purp. Stat. 826.

A fee-bill may be issued against a party to collect the costs due from him to the officers of court, &c., without regard to the results of the suit (Purp. Stat. 562), but the clerk has no authority to issue that kind of process to enforce a final judgment. Neal v. Blanchard, 32 Ill. 503.

The fee-bill under which the appellant justifies the conversion of the property in controversy, is void upon its face. All proceedings under it were without authority.

The judgment of the court must,'therefore, be affirmed.

Judgment affirmed.