Noland v. Lock
Supreme Court of Alabama
Error to the Orphans’ Court of Pickens. Tried before the Hon. Lemuel A. Gilkey, Judge.' On the 19th November 1846, the defendant in error contested the will of Philip Noland, deceased, and having failed, judgment was rendered against him in favor of the plaintiffs in error, the executors, for the costs of the proceeding.
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Error to the Orphans’ Court of Pickens. Tried before the Hon. Lemuel A. Gilkey, Judge.' On the 19th November 1846, the defendant in error contested the will of Philip Noland, deceased, and having failed, judgment was rendered against him in favor of the plaintiffs in error, the executors, for the costs of the proceeding. On the second Monday in May 1848, the defendant in error moved the court “ to ré-tax the cost in the matter of the probate of Philip Noland’s Will, heretofore taxed against him as contestant, so as to tax said cost against the executors of the estate,” &c. The court granted…
1Opinion of the CourtDargan, J.
In support qf the judgment of the Orphans’ Court, it is contended, that this was a mere motion to re-tax the cost, and not a motion to set aside a judgment rendered at a previous Term. A motion to re-tax the cost of a suit is simply a motion to correct a ministerial act of the clerk, or officer whose duty it is to tax the cost; but here the defendant in errqr did pot move to have any mistake qf the clerk corrected in taxing the cost, but by his motion, he asked the court to alter the judgment for cost and to render judgment against the other party; in. one word, he asked the court to release…
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