
    Augusta Meacham v. Henry T. Steele et al.
    
    
      Filed at Ottawa. March 24, 1880.
    
      Costs—as to original transcript of record from a trial court to an Appellate court. On an appeal from an Appellate court to this court, the fees of the clerk of the trial court, in the making of the transcript of the record upon which the case is taken to the Appellate court, are properly taxable as costs in the latter court, not in this court.
    This was a motion in this court for the re-taxation of the costs.
   Per Curiam:

This cause came to this court on appeal from an Appellate Court. The judgment of the trial-court was affirmed in the Appellate Court, and upon appeal to this court that judgment of affirmance has been reversed and the cause remanded to the Appellate Court. It was also considered by this court that the costs occasioned by reason of this appeal should be borne equally between the parties. In the taxation of those costs the clerk of this court included therein the fee for making the original transcript of-the record brought from the trial court to the Appellate Court. This was improper.

The 88th section of the Practice Act, as amended by the act of June 3, 1879, (Sess. Acts, 222,) provides: “In all cases of writs of error and appeals prosecuted or taken from any "decision of any of the appellate courts to the Supreme Court, it shall not be necessary for the clerk of the appellate court in which said cause was heard and determined, to make out and certify a copy of the original transcript of the record filed in the said-appellate court, but it shall be sufficient for, and it is hereby made the duty of, the clerk of said appellate court to transmit the original transcript of the record filed in his office, with his official certificate and seal of office authenticating the same, with a true and perfect copy of all the orders and proceedings appearing of record in said cause; which said copy of the record and proceedings, duly authenticated with the seal of said court, shall be transmitted to, and filed in the Supreme Court, and the clerk of the appellate court shall be entitled to receive from the party procuring said record and transcript, the fees allowed by law for his certificate and copy of the proceedings .had in the appellate court, and he shall not be entitled to charge or receive any fee for copying or transmitting said original transcript, other than for his certificate, and the reasonable cost of sending said transcript and record from his office, either by mail or by express, to the clerk of the Supreme Court.”

The evident purpose of that section is, that on appeals from the appellate courts to this court, or on writs of error from this court to an appellate court, no costs shall accrue in respect of such appeals or writs of error "on account of the original transcript of the record upon which the cause was removed into the appellate court, except merely for the certificate of the clerk of that court authenticating such transcript, and the cost of transmitting the same to this court. The costs of making that original transcript are costs attending the appeal to the appellate court, and are there properly taxable, and not elsewhere. If the cause had been brought directly here from the trial court, then of course the cost of the transcript would have been properly regarded as embraced in the costs of this court. But the statute expressly forbids that any fee shall be allowed to the clerk of the appellate court, on appeal or error from that court, for copying or transmitting the original transcript, except for his certificate of authentication and the expense of transmission.

The costs of each court are properly taxable in that court, and in that court alone. The clerk of the appellate court will be entitled to his fee for any transcript he may have made of the record of proceedings had in that court, and that will be considered as costs in this court, and properly taxable here.

On the remandment of this cause to the appellate court, and the reversal in that court of the judgment of the trial court, the appellant there will recover his costs “by him in that behalf expended,” among which will be included the cost of the original transcript.

The clerk of this court will reform his taxation of costs in accordance with this opinion.

Motion allowed.  