McElwee v. Kennedy

¶1 dissenting, I cannot concur in the conclusion reached by Mr. Justice Jones .in this case, and will proceed to state briefly the grounds of my dis-. sent. Sec. 326 of t'he Code expressly provides what shall be inserted .by the clerk in a judgment as costs and disbursements of the prevailing party, amongst which is the “expense of printing the papers for any hearing when required by a rule of the Court” (italics mine). This, so.far as I am informed, is the only authority for the allowance of the expense of printing any paper. When, therefore, a question arises as to whether a party is entitled to an allowance for the expense of printing a given paper, the controlling inquiry is whether such paper is one of those required to be printed by any rule of Court. If it is, .then the charge must be allowed; but if it is not, then it must be disallowed. In this case, the paper for the .printing of which the charge objected to is claimed, is called “points and authorities,” and the practical inquiry is whether the paper in question can be properly so designated, for it is conceded that the-rules of this Court do require that the points and authorities shall be printed except in cases provided for by sec. 343 of the Code, which does not apply to this .case. So that the inquiry is narrowed do'wn to the question whether the paper charged for can properly be regarded as “points and authorities.” Rule IX. shows very clearly what such a paper-should contain, viz: 1st, “a brief statement of the nature of the action *339 and defenses; 2d, the nature of the questions brought up by appeal; 3d, the propositions of law and fact relied on; 4th, a note of the authorities and references by folio to the evidence, when an examination of the evidence is necessary.” The very object of the rule is to ensure brevity as far as is consistent with clearness. It certainly does not require an argument in extenso. It does not require, as the Circuit Judge says, “A full statement of each proposition of law and fact relied upon.” On the contrary, the requirement in the rule is a “brief statement,” and I cannot think that such statement would include “a statement of the reasons” upon which such propositions are founded, as that would be argument and not a mere statement of the points relied upon. Nor do I think -that the rule can be properly construed as authorizing quotations from authorities cited, as the language of the rule is, “a note of the authorities,” which it seems to me necessarily implies a mere citation- by reference to the book, volume and page, where -the points relied on can be found. So, also, I am unable to- concur in the idea that the rule either contemplates or requires that counsel, in stating his propositions of fact, shall add thereto “a summary of what each witness testifies,” for the language of the rule is that counsel shall make “reference by folio to- the evidence,” which shows not that counsel may make “a summary of what each witness testifies,-” but shall merely refer to- -the folio at which the testimony he relies upon may be found. It seems to me that a bare inspection of the paper in question in this case is quite sufficient to show that it is not -such a paper as is contemplated by the rule of Court -and required to be printed. It is nothing but an argument in extenso, which is not required to be printed and, therefore, cannot be charged for. I may add, that I have never yet seen a case and am unable to conceive of -one in which forty-six printed pages should be necessary to :set forth the “points and authorities” contemplated by the rules of this Court. ‘For these reasons, thus briefly indicated, I cannot concur in- the conclusion reached in the leading opinion.1'