Christy vs. Christy and others, 6 Paige Ch. 170

The Chancellor.

To ascertain the intent and meaning of that part of the order which directs the payment of the costs of the complainants proceedings to take the hill as confessed against the defendant who is permitted to come and defend the suit, we must advert to the situation and rights of the parties at the time the several proceedings took place for which costs are claimed under the order, No process was ever served upon the absentees, to appear and answer, and they had no actual or even constructive notice of the commencement of the suit, until after the publication of the notice and the expiration of the time allowed to them by the order of the court to appear and answer.

All the proceedings of the complainant previous to that time were in the nature of a substituted service of process to appear and answer. The bill could not be taken as confessed until the order for publication had been entered and the publication had, agreeably to the directions of the statute. But the entering of the order, or the publication thereof, was no more a part of the proceedings to take the bill as confessed against the absentees, than the personal service of the subpoena upon the resident defendants was a part'of the proceedings to take the bill as confessed against them.

No proceedings could be instituted to take the bill as confessed against either class of defendants until they had made default in appearing, or in answering the bill after they had appeared. And if one of the resident defendants had been let in to defend, upon the terms in this order, no person who had any knowledge of the course of practice on this subject in courts of justice, would have thought of charging the costs of the subpoena, or of the service thereof, as a part of the costs of the proceedings to take the bill as confessed.

The absentees were not in default until after the expiration of the time limited in the order for publication, as they were entitled, as a matter of course, to appear and answer at any time previous thereto. And the proceedings, of the complainant to take the bill as, confessed against this defendant, must, according to the true construction of the order permitting him to corne in and defend the suit, be deemed to have commenced with the drawing of the affidavít of his default to appear and answer within the time limited in the original order for publication.

Not only two • thirds, but the whole of the twelve first charges in the bill of costs, should therefore have been rejected by the taxing officer.

The taxing officer was right in charging this defendant with but one-third of the costs of the proceédings to take the bill as confessed against three absentees jointly, as those proceedings, as to two of the absentees, would have been necessary even if this defendant had appeared and answered within the time originally limited for that purpose ; and the proceedings as to those two are not abrogated or rendered useless by the subsequent order permitting this defendant to come in and defend the suit for himself only.

If the complainant succeeds in the suit, the other two-thirds of the costs of those proceedings will be allowed to him as part of the costs in the cause ; and this defendant will thus be charged with his proper proportion thereof as one of the tenants in common of the premises of which partition is sought. And if the complainant does not hold the land in common with the other defendants, he has no just claim to those costs as against any of the defendants. The taxing officer erred, however, in not allowing to the complainant the whole costs of the proceedings before the master upon the order of reference.

As these proceedings before the master were ex parte, and this defendant has an interest therein, if he does not succeed in defeating the complainant’s suit altogether the reference must be proceeded in de novo, as to some if not all of the objects of the reference. These costs were consequent upon the order to take the bill as confessed against this defendant; and being rendered inoperative and useless in consequence of his coming in and defending the suit, they were properly taxable against him under the order granting him that indulgence.

The order to take the bill as confessed against an absent defendant in a partition suit, in this court, is an order of course ; to be entered in the office of the register, or clerk, upon filing the affidavits of publication and of the neglect of the defendant to appear and answer. The taxing officer was therefore-right in disallowing the charge for solicitor’s and counsel fees attending upon the order to take the bill as confessed against the absentees, although it was actually entered as a special order.

Where a party makes. an unnecessary application to the court for a special order, where an order of course might have been entered, he is only to be allowed, upon taxation, the ordinary costs of a common order. The charge for drawing instructions for the examination of witnesses before the master was properly overruled. The allowance in the fee bill for drawing instructions for the examination of a witness is not applicable to such a case.

The. charge for attending the master with the order of reference, is the same in substance as a charge for attending the master to obtain his signature to a summons, which this court has heretofore decided is not provided for by the. fee bill. (2 Paige’s Rep. 496.) The complainant was not entitled to charge a counsel fee for arguing before the master on an ex parte reference, upon a bill taken as confessed, where the adverse party had not appeared in the cause and was not summoned to attend.

To authorize an allowance to counsel for arguing, or appearing to argue before a master, there must either be an actual argument with the adverse party on the reference, or the counsel must have attended, pursuant to notice, under the expectation that such an argument was to take place before the master. Twelve and a half cents was the proper allowance for serving the subpoena upon each witness. And the charge for the attendance of the complainant himself as a witness was properly disallowed. It is' not necessary in this case to determine whether the 127th

section of the title of the revised statutes relative to the court of chancery, (2 R. S. 186,) which authorizes the master to receive the testimony of the complainant in certain cases, is applicable to a proceeding against the absent deféndants, or unknown owners, in a partition' suit. But admitting this was a case in which the testimony of the complainant could be received to prove • the extent of his interest in the premises of which partition was sought, he was not entitled to pay for his attendance as a witness, or to an allowance for taking out a subpoena and serving it on himself.

The charge of the master of SI5 for superintending the survey, in addition to his taxable fees upon the reference, was also properly rejected by the taxing officer.

If the expense of this survey was necessary to enable the master to determine the question whether the premises were capable of a division, or to ascertain the proportion of the premises which belonged to the complainant, in reference to the alleged advancement to the two absentees who have not yet appeared in the cause, although it was a necessary disbursement in the suit it was not a disbursement which was consequent upon the taking of the bill as confessed against this defendant, or which will be rendered nugatory by his answer if the complainant succeed in the suit.

Only one-third of that disbursement is therefore taxable, tinder this order, if any part of it can properly be allowed ; and the other two-thirds thereof will be recovered by the complainant upon the final decree for partition, as a part of the general costs in the cause. The costs must be re-taxed by the vice chancellor of the fifth circuit upon these principles ; and neither party is to be allowed costs as against the other upon this application.