Marshall v. Marshall

²⁶⁰ Henee, J., delivered the opinion of the Court. By the decree, of this Court passed on February 6th. 1914, in the appeal of Thomas W. Marshall v. Laura Marshall ( 122 Md. 694 ) the action of the lower Court in divorcing the parties a vincido matrimonii was reversed, the bill of complaint dismissed and the appellee directed to pay the costs. The mandate issued in pursuance of the decree reached the clerk of the Circuit Court of Baltimore City, in which the suit originated, on or about February 26th, 1914. A few days later one of the clerk’s deputies furnished on request a bill of costs to the solicitor for the appellee in that proceeding.

The bill thus rendered included only the charges fox docket entries, there having been no formal taxation at that time, on the docket, of the costs which had been incurred and paid by the appellant for the taking of testimony and the preparation of a transcript of the record to be sent here on the appeal. On March 5th, 1914, the appellee, through her solicitor, paid the incomplete bill of costs received from the clerk, .and also the costs which had accrued in this Court. A supplemental bill was presented on March 9th to- the appellee’s solicitor for the previously omitted costs of the appellant, which had then been duly taxed. The appellee refused to1 pay this bill' on the. ground that her liability for costs under the decree of the .Court of Appeals had been fully discharged by the payment of the bill first submitted.

A writ of fieri facias was subsequently issued for the collection of the unpaid costs, and the present suit is for an injunction to restrain the execution. It is not denied that the disputed costs had been actually and regularly contracted and paid, and that they were ascertainable from the proceedings, and that they would ordinarily be taxable and enforceable against the appellee under our mandate, but the contention is, in effect, ■ that the right to collect these costs, which are considerable in view of the magnitude of the record, has been completely extinguished as the result of their inadvertent and temporary omission from the taxation on the docket and from the bill originally rendered the party charged with their payment. This would ²⁶¹ amount to a discharge by accident and mistake of a formally decreed liability, and it is a theory which we decline to accept. The decision of this Court was that the appellee in the record then before us should pay the costs of the case.

There could be no doubt or difficulty as to what was included in that requirement. It was not limited to such costs as might be stated in a bill prematurely made out and presented before a complete taxation had been made and entered of record. The costs for which the appellee was made liable by the decree were those which were properly taxable, and not merely those which happened to be actually taxed on the docket when the appellee’s solicitor asked the Court for the bill shortly after the issuance of the mandate. It would have been the proper practice, as directed by statute, to have entered upon the record for transmission to this Court all the costs which had accrued to the time of the appeal.

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