
    Humiston vs. Ballard.
    The Supreme Court possesses no power to award có'sts in an action pending, at the time, in A county court. Nor has a county court, or county cléi-Ic, the power to order costs accruing in the Supreme Court to be added to a judgment rendered by the county court.
    A county court, without legal authority, Ordered a case, pending in it, and which had never been legally removed from it, to be heard at á general term of the Supreme Court. When it Came there, the court said it was improperly there and refused to hear it, and entered no judgment for costs, or otherwise, but entered a mere order dismissing it from the Supreme Court. Held that Upon a final recovery, by the plaintiff, he was not entitled to the costs in the Supreme Court at the general term, when thé cáse Was sent there by the Order of the county court.
    The legislature, in the enactment of section 371 of the Code, by referring to the jtedgment to be appealed from, did not intend to refer to it as a judgment to be afterwards increased by interest, but to the judgment as" it was at the time the party appealed from it.
    
      THIS is an appeal.by the defendant from an order made at special term, in the sixth judicial district, affirming the taxation of costs by the clerk of Cortland county. The action originated in a justice’s court, and was upon contract. The plaintiff recovered, in the justice’s court, $80, besides costs. An appeal was taken to the county court, and a trial there resulted in a verdict for the plaintiff for $90. From this an appeal was about to be taken to the Supreme Court, and a case with exceptions was made for that purpose. The county court of Cortland thereupon made an order that the exceptions be heard in the first instance at the general term of the Supreme Court. It was placed upon the calendar of the general term, and submitted upon points and briefs. The general term held that the case could not be heard in that court, upon such an order of the county court, and refused to entertain the case. The plaintiff then perfected ■judgment in the county court. The defendant then appealed to the Supreme Court upon said case and exceptions, and obtained a reversal of the judgment, and anew trial. The then county judge, being disqualified by reason of having been counsel, certified the cause into the Supreme Court, and the action was again tried, at a circuit, and a verdict rendered for the plaintiff" for $75. On this verdict the plaintiff" noticed his costs for adjustment before the clerk. The defendant appealed from the adjustment, and claimed that a $75 verdict at that time was more than $10 more favorable to the defendant than the $80 verdict, with interest thereon, had in the justice’s court, and claimed costs in favor of the defendant. In the plaintiff’s bill, as taxed by the clerk, was $70, the costs in the Supreme Court at general term, when the case was sent there by the order of the county court, which was specially objected to by the defendant, on the ground that the case was dismissed by the Supreme Court for being irregularly there, not on appeal, and that the Supreme Court had made no order for costs. The appeal from such taxation was heard at a special term of the Supreme Court, and the taxation or adjustment of the clerk affirmed; and the case was now before the court upon an appeal from this order of the special term. Some other questions arose in the case which will sufficiently appear in the opinion.
    
      H. Ballard, for the plaintiff.
    
      A. P. Smith, for the defendant.
   By the Court, P. Potter, J.

We must accept as the law of this case, that the general term correctly dismissed the case as being there without authority; or, in other words, that court had no jurisdiction to give judgment between the parties, and they gave none. The only judicial act that court could perform, in the case, was to dismiss it. Costs now, in all cases, are the creation of the statute, and. they are given or withheld as the statutes direct. Of course if the court had no jurisdiction to render a judgment, and having omitted to award costs—even the costs of a motion—it follows, that if any costs of that proceeding are recoverable, it must be by reason of some positive regulation of the statute. (King v. Poole, 36 Barb. 247.) But it must be conceded that this, rule applies only to that class of cases where the.want of jurisdiction appears upon the face of the proceedings, as it did in this case. There is a class of cases, however, in which the proceedings are in the form prescribed by law; where the court below had no jurisdiction of the subject matter; and where the statute provides the form of appeal to this court, and even to the Court of Appeals, to have it declared that the court below had no jurisdiction in which the courts do possess the power to award judgment, and costs. Such was the case of Kundolf v. Thalheimer, (12 N. Y. 593,) where the. county court assumed civil jurisdiction under the constitution of 3846, and kindred cases. The Code, section 344, expressly provides for such cases. Judgments in the county courts, in such cases, created apparent liens upon property of defendants sufficient to protect ministerial officers in enforcing the same by execution. The-distinction between the cases is apparent. In the case .we are reviewing, it was not in this court by any proceeding known to the law. It is very clear, to me, that this court then possessed no power to award costs in an action at that time depending in the county court. And it is not before us to decide whether they might have granted the costs of a motion to dismiss the case. They made no order as to costs. It is just as clear to me that neither the county clerk of Cortland, nor the county court of that county, had the power to order costs accruing in the Supreme Court to be added to a judgment in the county court of Cortland. In the certifying an action in the county court to the Supreme Court for the reason that the county judge is incapable of trying it, as in this case, though for the purpose of trial the jurisdiction is vested in the Supreme Court, yet, for this purpose, the judge at the circuit is but the substitute for the county judge, and the proceedings therein are to be the same as might have been had in the county court, if such cause or matter had remained therein. But it i§ not in regard to the costs of .the circuit that any question arises.

This point of the case is simply stated, thus: The county court, without legal authority, ordered the case while depending in it, and never having been legally removed from it, to be heard at general term of the Supreme Court. When it came there, the general term said it was improperly there, and refused to hear it, and entered no judgment upon it for costs, or otherwise, but entered a mere order dismissing it from that court. Then, the question is, can costs be taxed against' the defendant, the same as if the action had been legally pending in that court? By what statute, then, are these costs allowed ? The plaintiff has charged at the rate provided in subdivision 5 of section 307 of the Code. But this subdivision allows costs only in cases of appeal. This was not an appeal, and that section does not apply to the case, and no provision in the Code, in regard to costs, is found applicable to -it. And this difficulty is increased by the fact that the general term of the Supreme Court neither reversed nor affirmed the case, nor themselves made an order for costs. Indeed, an order from that court allowing costs not provided for in the Code, would have been without authority. The special term, whose order we are reviewing, does not place its decision upon any provision of the statute, or upon any precedent, or adjudication; but upon a kind of quantum meruit for services actually performed, and upon the ground that the illegal order of the county court was made at the suggestion or request of the defendant’s counsel. And concludes, “that the court not having power to make such an order does not deprive the opposite party of his costs incurred in the proceedings under said order.” With all due deference, I cannot concur in this holding.

The fee bill provided by the Code is confined to'proceedings conducted according to its provisions; and for no other. The rule of the special term makes a new fee bill not known to the Code—not known to legal and legitimate proceedings in an action under it—a rule very convenient for bunglers in practice to secure compensation for services in all cases of mistakes, or even of designed wrong. Suppose the county court of Cortland county had sent the case directly to the Court of Appeals, instead of the Supreme Court; it had equal power to do so. The compensation in the Court of Appeals is still better for the prevailing party. The order of the special term would have been equally sound had it allowmd the costs of the Court of Appeals in the supposed ease. Equally so had the county court ordered the case to an arbitration. The prevailing party might have performed an equal amount' of labor, but can the clerk or the court allow costs for such illegitimate services? The legal presumption is, that every man knows the law; this presumption ought not to be destroyed, when applied to lawyers. The plaintiff had a plain method provided by law, to-get rid of this illegal order, by proceedings known to the practice, and for which the Code allotvs compensation. He could have applied to have this illegal order vacated; if the motion was denied, the Code furnishes a remedy by appeal to this court. These would be legitimate services for which the fee bill, or the court, would allow compensation. This was the true remedy. In this regard, the rule ádopted by the clerk and the special term was error.

The defendant has raised another point on the appeal— that the judgment in the county court, for $75, is more favorable to him by an amount exceeding $10, than the verdict of $80 in the justice’s court; that is, the action being one upon contract, casting interest upon the $80 judgment, there is more than $10 in favor of the last judgment. I do not think the legislature, in the enactment of the 371st section of the Code, in referring to the judgment to be appealed from, intended to refer to it as a judgment to be afterwards increased by interest, but to the judgment as it was at the time the party appealed' from it. As it was then a judgment of $80, the subsequent judgment of $75 was not $10 more favorable. Although for some purposes interest is the incident and becomes a part of a judgment, for other purposes it does not. By a provision of the Revised Statutes, (2 R. S. 364, § 9,) interest on judgments, like costs, is directed to be indorsed on the execution from the date of recovering the same. I think the judgment, independent of interest, is intended as the test of difference between judgments. But the rule, stare deeieis, is invoked as controlling, in the sixth judicial district, where this case originated. I feel bound by that rule, until reversed by a higher court. This being so, I do not feel bound to discuss the point whether or not the notice of appeal brings the defendant within the provisions of the 371st section of the Code, as amended in 1866.

[Third Department, General Term, at Plattsburgh,

July 5, 1870.

The result is, that the order of the special term should be modified by striking out of the plaintiff’s bill of costs $70, charged for the costs of the argument in general term of the Supreme Court, when the case was irregularly there, with $10 costs of this motion and $10 costs at special term, to the defendant on this appeal.

Miller, P. J., and Potter and Parker, Justices.]  