
    MORA a. THE SUN MUTUAL INSURANCE COMPANY.
    
      New York Superior Court ;
    
    
      Special Term, September, 1861. .
    Special Motion.—Interlocutory Costs.—Prevailing Party.
    Section 15 of chap. 386 of the Laws of 1840, which provides that where an unconditional order is made, upon special motion, for the payment of any sum of money, a precept may be issued to enforce the payment—and § 3 of ch. 390 of the Laws of 1847, allowing process in the nature of a fieri facias against personal property, to be issued for the collection of interlocutory costs in certain cases,— do not authorize the issuing of process to collect the costs awarded on sustaining a demurrer to part of an answer.
    
    
      Interlocutory, in law, means that which decides, not the cause, but only settles some intervening matter relating to the cause. The matter thus settled is brought before the court by special motion.
    Where a demurrer had been interposed to three of six separate defences contained in an answer, and an order made that plaintiff have judgment upon the demurrer, with costs fixed in the order, and the plaintiff issued a precept for the collection of the costs while the issues of fact were yet undetermined ;—Held, that these costs were neither interlocutory nor the costs of a special motion, and that the precept must be set aside.
    Motion to set aside a precept issued to collect costs of proceedings upon demurrers interposed to part of an answer.
    This suit was upon a policy of insurance on merchandise, issued by the defendants. The defendants set up in the first three heads of their answer various matters of defence; and then, in the fourth, fifth, and sixth heads of the answer, set forth, by way of separate counter-claims, three promissory notes made by th.e plaintiffs and held by the defendants. The plaintiffs demurred to the fourth, fifth, and sixth defences. The demurrers were argued at special term, and by the decision made thereon, it was ordered that the plaintiffs have judgment against the defendants on each and all of the demurrers, with costs, with liberty to the defendants to amend their answer within twenty days, on payment of the costs of the demurrer, which were thereby fixed at thirty-seven dollars and ten cents.
    The defendants did not amend their answer: after the. twenty days given to amend had expired, the plaintiffs’ attorney demanded of defendants’ attorney the $37.10 costs, which the latter declined to pay, saying the defendants had concluded not to amend their answer.
    The plaintiffs’ attorney thereupon issued process in the nature of a fieri facias (here called a precept) to collect such costs. It was levied on defendants’ property.
    The issues of fact raised by the first, second, and third heads .of defendants’ answer had not been tried.
    The defendants now moved to set aside this precept.
    
      Henry P. Fessenden, for the motion.
    —I. The expression “ with costs,” in the order, does not import a positive order on the defendants to pay the costs. 1. The Code provides, that in an action like the present, the prevailing party shall recover the costs of a demurrer of course (§ 304, subd. 4 ; and §§ 305, 307) ; and it was therefore unnecessary for the court to award them, in order to give the plaintiffs the right to them: while on the other hand, 2. The court has no power to order present payment of costs of demurrer. Such costs are collectible only in .the judgment. (Code, § 311, compared with § 315.) It is only interlocutory costs, the immediate payment of which could have been ordered; and under the Code, it is only the costs on a motion which can be ordered to be immediately paid, or can be absolutely ordered. (Code, § 315 ; Thomas a. Clark, 5 How. Pr., 375 ; Wesley a. Bennett, 6 Abbotts' Pr., 12.) If these are costs on motion, they cannot exceed ten dollars. (Code, § 315.) Costs on a demurrer are not interlocutory costs; they are costs in the cause, arising on the record. Much less is the argument of a demurrer, a motion. It is a trial. (Code, §§ 249, 252.). The words “ with costs,” in the order, áre therefore surplusage, and ought to be stricken out.
    II. A precept can be issued only to collect costs on motion, and those only when ordered absolutely. (Laws of 1840, 333, ch. 386, § 15 ; 1847, 491, ch. 390, § 3.) These statutes are still applicable. (4 How. Pr., 23 ; Weitzel a. Schultz, 3 Abbotts’ Pr., 468, and 13 How. Pr., 191.)
    
      Francis H. Dykers, for the plaintiffs.
    —I. Interlocutory costs are to be collected b y fieri facias. (Laws of 1847, 491 ; Lucas a. Johnson, 6 How. Pr., 121.)
    II. The decision upon the demurrer is an order (Drummond a. Husson, 1 Duer, 633) ; and the application for it, a motion. (Code, §§ 400, 401.) Wesley a. Bennett (6 Abbotts' Pr., 12) is in harmony with our position.
    
      
       The following cases arising under the statutes above referred to, further illustrate the subject.
      The act of 1840 (Laws of 1840, 333, ch. 386, 15) does not authorize a precept to collect costs of an application for judgment on the pleadings, but only to collect the costs of motions strictly so called. (Wesley a. Bennett, 6 Abbots’ Pr., 12.)
      A precept issues as of course to collect costs given for appearing to oppose a motion noticed but not made. (1845, Herring a. Hallenbeck, 1 How. Pr., 89.)
      A charge of one dollar for a precept issued to collect costs, given on decision of a motion, cannot be allowed; all the costs are covered by the amount given on the decision of the motion. (1845, Spooner a. Frost, 1 How. Pr., 192.)
      Where judgment as in case of nonsuit, is granted absolute, the costs of the motion cannot be collected on a precept; they should be collected as the general costs are. (1846, Carroll a. Frazee, 2 How. Pr., 93.)
      Costs of opposing motion for a new trial after judgment entered, may be collected by precept, or the party may, at his election, make up a new record, and include them in it. (1846, Houghton a. Gardner, 2 How. Pr., 144.)
      
        Under rule 60, a precept issued to collect costs, granted, on a motion, is premature, if issued within twenty days from the date of the order. (1846, Post a. Haight, 2 How. Pr., 175.)
      Where a motion for a new trial is denied with costs, process under the Laws of 1847 (ch. 390, § 2), in the nature of & fieri facias, js the proper remedy for their collection. (Buzard a. Gross, 4 How. Pr., 23.)
      Where an appeal is dismissed with “ costs on the appeal and costs of motion,” the respondent is not at liberty to issue a fieri facias to collect such costs, until their amount has been liquidated by or under the direction of the court. (1850, Eckerson a. Spoor, 4 How. Pr., 361.)
      
        It seem, that a fieri facias cannot be regularly issued in such case, till steps have been taken to bring the party into contempt, Ib.
      
      Whenever there is an order of the court, directing the payment of costs, process in the nature of fieri facias may issue against the personal property of the party ordered to pay them (under Laws of 1847, 491, ch. 390), without application to the court, upon expiration of the time prescribed for payment. If such process is irregularly or prematurely issued, the party aggrieved will have a remedy by motion or by action; (Weitzel a. Schultz, 3 Abbotts' Pr., 468; S. C., 13 How. Pr., 191. To the same effect is Mitchell a. Westervelt, 6 Ib., 265, 311, note; Lucas a. Johnson, Ib., 121.)
      Costs awarded on supplementary proceedings cannot be collected by process in the nature of fieri facias, issued under the laws of 1847, ch. 390, § 3. Their payment can be enforced only under section 302 of the Code, which authorizes the officer before whom the examination is conducted to punish as for a contempt, for disobedience to his orders. The process allowed by the act of 1847, can be issued only to collect costs founded on an order of the court. Supplementary proceedings are not conducted before the court, but before the judge as an officer out of court [4 How. Pr., 190 ; 2 Sandf., 724] ; and his order awarding costs cannot be deemed an order of the court. (Hulsaver a. Wiles, 11 How. Pr., 446.)
      Process in the nature of a fieri facias, issued against several defendants, to collect the costs of the denial of a motion, is regular, although one of the defendants died previous to making the motion. (Lucas a. Johnson, 6 How. Pr., 121.)
    
   Bosworth, Ch. J.

—The authority to issue the precept in this case must be found in the Laws of 1840, 333, ch. 386, § 15, and the Laws of 1847, 491, ch. 390, or else it must be set aside as unauthorized and illegal. No other statute is cited as conferring authority to issue it.

Section 15 of chapter 386 of the Laws of 1840, enacts that “all orders awarding costs upon granting or denying special motions shall specify the amount of such costs; and where the order for the payment of costs, or any sum of money upon special motion, is not conditional," a precept to enforce payment of such costs or sum of money may be issued, "without any demand or application to the court.”

Chapter 390 of the Laws of 1847, enacts (§ 2) that “ no person ■ shall be imprisoned for the non-payment of interlocutory costs,” except in certain special cases enumerated in that section.

Section 3, “ Process in the nature of fieri facias against personal property may be issued for the collection of such costs founded on such order of court.”

Interlocutory (in law) means that which decides, not the cause, but only settles some intervening matter relating to the cause. The matter thus settled is. brought before the court by special motion.

■ A judicial examination of an issue of law is a trial. (Code, § 252.)

Such an issue must be noticed for trial (Ib., 256), and be placed on the calendar (Ib., 253) ; and a trial-fee is given to the successful partyj if he succeeds in the- cause (Ib., 307, subd. 4), otherwise not.

• The decision upon -the demurrer, when liberty to. amend is not given, is final. And if liberty be given, and it is not acted upon within the prescribed time, the decision becomes absolute and final. ■ It is a final determination of the rights of the parties, as to the cause of action or defence covered by the demurrer. It is quo ad hoo a judgment, (Ib., 245.)

■ So record can be made up until the issues of fact are disposed of. (Masters a. Barnard, 6 How. Pr., 113.) And in this case,'if the defendants should obtain a verdict on the issues of fact, the plaintiffs cannot have any costs of their demurrer. (Ib.) Such was the law prior to the Code. (2 Rev. Stat., 617, § 28 [27].)

There is no provision in the Code authorizing the award of costs to bothparties, on "the final disposition of an action for the recovery- of- money. Either the plaintiff or the. -defendant recovers his costs of the action, but only one of- them can -have such costs ; and the amount of such costs is fixed by the Code, and is not a subject of judicial discretion.

■ This- motion should be disposed of,- as it would be, if the order of the 14th of "May; 1861, did not give defendants liberty to amend" on terms. 1 Those "terms have not been complied with, and that part of. the order has become inoperative. Rejecting that, the order is, that “ the plaintiffs have judgment on. each and all of said demurrers, with costs.”

•Suclrwas the order in Wesley a. Bennett (6 Abbotts' Pr., 12), except that the order in the latter case gave $10 costs of the motion, judgment having been moved for under section 247 of the Code. .Yet" it Was held in that case that the $10 costs could not be collected by precept, but must be included, in the judgment, and collected by execution upon it.

That "demurrer! was to only one of two causes of action, stated in the complaint, and the issues of fact joined upon the allegations constituting the other cause" of action had not been- tried, (See, also, Wesley a. Bennett, 5 Abbotts' Pr., 498.)

In that case, as in this, the costs sought to be collected were costs of a.proceeding to obtain judgment, as the immediate and only decision to be made upon it. In the present case, that proceeding was not a motion, but a trials and the costs in question are the costs of that trial; and the order in which that proceeding ended is, that the plaintiffs have judgment.

The added words, “ with costs,” only import that it is to be part of the judgment ordered that the plaintiffs recover costs of the demurrer. This should probably be understood to mean, that they recover costs of the demurrer, if entitled to the costs of the action, as by law they are entitled to them only in that contingency.

But if construed to mean that the order awards costs of the demurrers, even though the defendants should succeed on the whole record, the difficulty still remains, that they are the costs of certain issues only, which on a trial thereof were decided in favor of the plaintiffs; and the decision is, that the plaintiffs have judgmént on their demurrers, with the costs of their demurrers. They must be collected like the costs of any trial followed -by judgment. Still, I think it should be held, that no costs are awarded, if the plaintiffs do.not recover $50. A judgment 16 with costs,” is a judgment with- such costs as the law gives in the particular case, and dependent upon the- contingencies to which the law subjects them.

If these views are correct, it was irregular to issue a precept.

Drummond a. Husson (1 Duer, 633) decides nothing in conflict with the views already stated. :

Section 349 of the Code treats _a decision sustaining or overruling a demurrer as an order.

The only consequence of this statutory law is, that the trial of an issue of law may result in a decision which is called an order, an appeal from which will be regarded' as a motion, for, all the purposes of the costs-of such appeal.

The construction given to section 349, subd. 2, treats all decisions of demurrers as orders, when they give leave to amend, so long as the time to amend is running.

But there has been no construction given to it which converts the trial of an issue of law into a special motion, or takes from the successful party the trial-fee given by the Code, and substitutes for it the costs of a motion.

The remark in Drummond a. Husson, that 'the only effect of the decision of a demurrer relating to only part of a pleading, “is to strike out or retain that part of the pleading to which the demurrer applies, leaving the other issues undetermined,” is calculated to mislead, if it favors the idea that sustaining a demurrer to a pleading expunges it from the record.

A demurrer to a pleading for insufficiency, if sustained, decides that it does not contain a cause of action' or a defence ; hut the pleading remains on the record. Still, the matter of' it •does not enter into the consideration of the court in the subsequent progress of the cause, prior to judgment.

If overruled, then the decision establishes the sufficiency of the cause of action or defence, and the demurrer admits the truth of the facts stated in the pleading demurred to.

These costs, in my opinion, cannot be called interlocutory costs with any more propriety than the costs of the trial of the issues of fact. If a complaint contain two causes of action, and only two, and issues of fact be joined as to .one of them, and a demurrer be interposed to the other for insufficiency, the issue of fact must be tried by a jury, and the issue of law by the court, if the action be one for the recovery of money. On the trial of the issue of law, judgment is ordered for the defendant “ with costs.” On the trial of the issues of fact, the plaintiff recovers over $50, and of course recovers costs. The costs of the trial in one issue, can no more be called interlocutory, than the costs of the trial of the other issue. If in such a case the defendant will recover the costs of his demurrer, he will recover them as the costs of a trial, which, by the very terms of the decision made, are to constitute a part of the judgment ordered in ‘ his favor. They are the final costs of the last proceeding had to determine the issue of law, and are neither interlocutory nor the costs of .a special motion.

The precept .must be .set aside as irregularly issued.  