By the Court,
Smith, J.
On an examination of the record in this case, it seems that an appeal was taken from two orderSj severally. The one under consideration is the order of Novenn ber 1, 1855, denying the application of the defendants to pay costs, in compliance with a former order of the court, as a condition for setting aside a default. The case having been before taken to this by appeal from an order of the court below, sustaining a demurrer to the complainant’s bill, which having been affirmed and the cause remanded, the complainant was allowed to amend his bill, and the defendants were allowed to answer such amended bill within twenty days. This order not having been complied with within the time limited, the default of the defendants was entered, and the bill ordered to be taken as confessed.
The defendants now contend that this order was irregular, for the reason, that on the filing of the remittitur from this court, the parties were -in the same situation, so far as pleading was concerned, as on the return of process, and hence the time for answering should not have been less than thirty^days, as in such case is provided by statute. But this cannot be so. The statute [281]*281has reference only to tbe return of process, and for that occasion prescribes tbe time witbin wbicb tbe defendant may be required to plead, answer or demur. Tbe defendant bad tbe benefit of this rule, and under its provisions did demur. Afterwards all subsequent pleadings are subject to tbe general or special rules of tbe court, as tbe circumstances of tbe case may require.
On tbe 6th day of October, 1855, tbe court below made the following order:
“ On reading and filing tbe affidavit, filed on tbe 21st day of September, in this term, it is ordered that tbe decree pro confesso filed on tbe 8th day of September, be, and tbe same is hereby set aside at tbe costs of the defendants to be taxed. Ordered further, that on payment of said costs witbin ten days from the date of this order, said defendants have leave to file their answer to complainants bill; but in case of a failure of said defendants to pay such bill of costs, or to file their answer witbin tbe time limited herein, that said decree -pro confesso, be, and tbe same shall be restored as if this order bad not been made.”
On tbe 15th day of November, 1855, tbe foregoing order was extended six days on account of tbe illness of E. Mariner, solicitor for tbe defendants.
On tbe 20th of October, and witbin tbe time as extended, tbe answer of tbe defendants was filed.
On tbe 1st day of November, appears tbe next order made' in the, case, wbicb is as follows:
November 1st, -1855, and now came tbe defendants Haydn and Osborn, by E. Mariner, their solicitor, and offered to pay tbe costs provided to be paid by tbe order of this court of October 6th, wbicb motion being opposed by P. Yates, Esq., solicitor for tbe complainant; and it appearing to tbe court that tbe order of the 6th of October' aforesaid, was not complied with according to tbe terms thereof, tbe said motion of tbe defendants is denied; thereupon it is ordered by tbe court that tbe complainant have final decree upon tbe pleadings and proofs in this cause.
This last order is tbe one appealed from, and wbicb is tbe subject of consideration now before us.
Tbe order of tbe 6th of October, 1855, set aside tbe default of tbe 8th of September, and gave leave to tbe defendants to file their answer witbin ten days, on tbe payment witbin that time [282]*282of the costs to be taxed. This time was again extended six days on account of the sickness of the solicitor, E. Mariner, Esq. Within the time thus extended, the answer of the defendants was filed, but the costs which were, by the order, to be taxed and paid, were not paid. If the defendants were not in default of the order of the 6th of October, in consequence of the non-payment of the costs to be taxed, then the answer was filed in time, and there is no occasion now to look into it to ascertain whether or not it discloses a good defence. The default of the defendants, ,if any there be, consists in not paying the costs within the time as extended, which time expired with the 21st day of October, 1855.
Now, as the order of the 6th of October was setting aside the default on payment of the costs to be taxed, and further, as on the payment, within ten days, of the costs to be taxed, leave was granted to file the answer, and in case of the failure to pay within the time limited, the costs so to be taxed, the former order was to be restored, it becomes an important question to be determined, by whom the costs so required to be paid on taxation, were to be taxed; or in other words, whose duty was it to get the costs, required to be paid, taxed; in order that the fail» ure of the party to pay the sum as taxed, might justify a restoration of the former order for a decree pro confesso ?
All courts, but more especially courts of equity, naturally desire to have the cases submitted to them, determined upon the merits, upon a full hearing of all the parties interested. Nevertheless, rules of practice, designed to bring the parties with their complaints and defences fully and fairly, and in proper order before the court, cannot be dispensed with; and a reasonable adherence to such rules ought to be insisted upon and enforced. The penalty of costs imposed by the court below, as a condition for continuing in force the order setting aside the default, was designed to compensate the complainant for the loss she may have sustained in consequence of the negligence or misfortune of the defendants; as well, perhaps, as to test the fidelity of the defence sought to be interposed. To that end, and for such purpose, are costs in such cases awarded. If, therefore, the party to whom such costs are awarded for such delinquency or misfortune of the opposite party, desires to avail himself of the [283]*283benefits of an order so made, be bas only to get tbe eosts taxed according to the regular rules of practice. Tbe opposite party may well be supposed to be himself unable to tax tbe costs of bis adversary. How can be know what items to tax, or bow can tbe taxing officer know what items .to allow, unless tbe party to whom costs are awarded furnish bis own bill ? If tbe court bad made tbe payment of a specific amount within tbe prescribed time, a condition for setting aside tbe default, or tbe non-payment of which a contingency on which tbe former order would be restored, tbe terms would be clear, and tbe duty of tbe defendants plain. But when tbe condition or contingency is, that one party shall pay the other tbe “ costs to be taxed," it clearly becomes tbe duty of the party to whom costs are awarded to procure tbe taxation and serve bis bill, because in no other way can tbe costs to be paid be fairly ascertained ; as the one party cannot be supposed to have tbe means of taxing costs awarded to tbe other. It was, therefore, as we think, tbe duty of the complainant, in case she desired to avail herself of that part of the order of tbe 6th of October, to have procured her bill of costs to be taxed, and proper notice thereof to be given to the party required to pay the same.
There was some confusion on the argument, in regard to the order appealed from, as the record shows two appeals to have been taken. It may not, perhaps, be proper to allude to tbe other order mentioned in tbe briefs, discharging the prochien
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By the Court,
Smith, J.
On an examination of the record in this case, it seems that an appeal was taken from two orderSj severally. The one under consideration is the order of Novenn ber 1, 1855, denying the application of the defendants to pay costs, in compliance with a former order of the court, as a condition for setting aside a default. The case having been before taken to this by appeal from an order of the court below, sustaining a demurrer to the complainant’s bill, which having been affirmed and the cause remanded, the complainant was allowed to amend his bill, and the defendants were allowed to answer such amended bill within twenty days. This order not having been complied with within the time limited, the default of the defendants was entered, and the bill ordered to be taken as confessed.
The defendants now contend that this order was irregular, for the reason, that on the filing of the remittitur from this court, the parties were -in the same situation, so far as pleading was concerned, as on the return of process, and hence the time for answering should not have been less than thirty^days, as in such case is provided by statute. But this cannot be so. The statute [281]*281has reference only to tbe return of process, and for that occasion prescribes tbe time witbin wbicb tbe defendant may be required to plead, answer or demur. Tbe defendant bad tbe benefit of this rule, and under its provisions did demur. Afterwards all subsequent pleadings are subject to tbe general or special rules of tbe court, as tbe circumstances of tbe case may require.
On tbe 6th day of October, 1855, tbe court below made the following order:
“ On reading and filing tbe affidavit, filed on tbe 21st day of September, in this term, it is ordered that tbe decree pro confesso filed on tbe 8th day of September, be, and tbe same is hereby set aside at tbe costs of the defendants to be taxed. Ordered further, that on payment of said costs witbin ten days from the date of this order, said defendants have leave to file their answer to complainants bill; but in case of a failure of said defendants to pay such bill of costs, or to file their answer witbin tbe time limited herein, that said decree -pro confesso, be, and tbe same shall be restored as if this order bad not been made.”
On tbe 15th day of November, 1855, tbe foregoing order was extended six days on account of tbe illness of E. Mariner, solicitor for tbe defendants.
On tbe 20th of October, and witbin tbe time as extended, tbe answer of tbe defendants was filed.
On tbe 1st day of November, appears tbe next order made' in the, case, wbicb is as follows:
November 1st, -1855, and now came tbe defendants Haydn and Osborn, by E. Mariner, their solicitor, and offered to pay tbe costs provided to be paid by tbe order of this court of October 6th, wbicb motion being opposed by P. Yates, Esq., solicitor for tbe complainant; and it appearing to tbe court that tbe order of the 6th of October' aforesaid, was not complied with according to tbe terms thereof, tbe said motion of tbe defendants is denied; thereupon it is ordered by tbe court that tbe complainant have final decree upon tbe pleadings and proofs in this cause.
This last order is tbe one appealed from, and wbicb is tbe subject of consideration now before us.
Tbe order of tbe 6th of October, 1855, set aside tbe default of tbe 8th of September, and gave leave to tbe defendants to file their answer witbin ten days, on tbe payment witbin that time [282]*282of the costs to be taxed. This time was again extended six days on account of the sickness of the solicitor, E. Mariner, Esq. Within the time thus extended, the answer of the defendants was filed, but the costs which were, by the order, to be taxed and paid, were not paid. If the defendants were not in default of the order of the 6th of October, in consequence of the non-payment of the costs to be taxed, then the answer was filed in time, and there is no occasion now to look into it to ascertain whether or not it discloses a good defence. The default of the defendants, ,if any there be, consists in not paying the costs within the time as extended, which time expired with the 21st day of October, 1855.
Now, as the order of the 6th of October was setting aside the default on payment of the costs to be taxed, and further, as on the payment, within ten days, of the costs to be taxed, leave was granted to file the answer, and in case of the failure to pay within the time limited, the costs so to be taxed, the former order was to be restored, it becomes an important question to be determined, by whom the costs so required to be paid on taxation, were to be taxed; or in other words, whose duty was it to get the costs, required to be paid, taxed; in order that the fail» ure of the party to pay the sum as taxed, might justify a restoration of the former order for a decree pro confesso ?
All courts, but more especially courts of equity, naturally desire to have the cases submitted to them, determined upon the merits, upon a full hearing of all the parties interested. Nevertheless, rules of practice, designed to bring the parties with their complaints and defences fully and fairly, and in proper order before the court, cannot be dispensed with; and a reasonable adherence to such rules ought to be insisted upon and enforced. The penalty of costs imposed by the court below, as a condition for continuing in force the order setting aside the default, was designed to compensate the complainant for the loss she may have sustained in consequence of the negligence or misfortune of the defendants; as well, perhaps, as to test the fidelity of the defence sought to be interposed. To that end, and for such purpose, are costs in such cases awarded. If, therefore, the party to whom such costs are awarded for such delinquency or misfortune of the opposite party, desires to avail himself of the [283]*283benefits of an order so made, be bas only to get tbe eosts taxed according to the regular rules of practice. Tbe opposite party may well be supposed to be himself unable to tax tbe costs of bis adversary. How can be know what items to tax, or bow can tbe taxing officer know what items .to allow, unless tbe party to whom costs are awarded furnish bis own bill ? If tbe court bad made tbe payment of a specific amount within tbe prescribed time, a condition for setting aside tbe default, or tbe non-payment of which a contingency on which tbe former order would be restored, tbe terms would be clear, and tbe duty of tbe defendants plain. But when tbe condition or contingency is, that one party shall pay the other tbe “ costs to be taxed," it clearly becomes tbe duty of the party to whom costs are awarded to procure tbe taxation and serve bis bill, because in no other way can tbe costs to be paid be fairly ascertained ; as the one party cannot be supposed to have tbe means of taxing costs awarded to tbe other. It was, therefore, as we think, tbe duty of the complainant, in case she desired to avail herself of that part of the order of tbe 6th of October, to have procured her bill of costs to be taxed, and proper notice thereof to be given to the party required to pay the same.
There was some confusion on the argument, in regard to the order appealed from, as the record shows two appeals to have been taken. It may not, perhaps, be proper to allude to tbe other order mentioned in tbe briefs, discharging the prochien ami, and substituting a security for costs ; and on the whole it is deemed best to suspend all comments thereon, until the appeal from that order is regularly noticed and brought on for argument and decision, provided it ever can be.
We are of tbe opinion that inasmuch as the defendants’ answer was filed in time, and as tbe amount of costs to be paid tbe other party depended upon taxation, it was tbe duty of tbe party to whom the costs were so awarded to procure the same to be taxed, and her failure do so was a waiver of that part of tbe order.
It is not necessary, as we understand the practice in cases of this kind, to consider whether, under the circumstances, tbe offer of the defendants to pay the costs on the 1st day of November, was such a reasonable compliance with tbe order as to have required [284]*284the court to accept tbe same as such, or not. Had tbe complainant caused tbe costs to be taxed, tbe amount to be ascertained, and tbe defendants bad neglected or refused to pay tbe same in pursuance of tbe order, a different question would' have been presented, and we might, in sucb case be called upon to consider tbe illness of tbe solicitor, and to look into tbe answer to discover tbe degree and nature of tbe defence thereby proffered.
We have examined tbe cases of Southerland vs. Sheffield (2 Wend. 293), and Hoadly vs. Cuyler (10 Wend, 593), but we do not regard them precisely in point. Those were cases at law, and tbe order of tbe court was to set aside tbe proceedings upon tbe payment of costs. There was no order of tbe court to tax tbe costs; Here tbe order is, “that tbe decree pro confesso be, and the same hereby is, set aside at tbe costs of tbe defendants, to be taxed.” Tbe defendants were not bound to pay any costs but sucb as were duly taxed. There was no occasion for them to seek their adversary and demand a taxed bill, because tbe order provided for tbe taxation of tbe bill, and it was tbe duty of tbe complainant to tax tbe bill in conformity with tbe order, without waiting for a demand to that end by the defendants. This is matter of practice, it is true, but if our views be correct, tbe defendants were not in default, and hence tbe order for a final decree of November 1, 1855, was erroneous.
Order reversed and cause remanded.