State v. Allison

32 Tenn. 373

Opinion

McKinney, J.,

delivered the opinion of the court.

This was a motion to correct the taxation of costs; and the simple question is, whether or not, in taxing the costs, in the case of a judgment, by motion against a sheriff, for an “ insufficient return ” . of an execution, under the act of 1836, ch. 19, § 6, the State tax can be included?

The act of 1848, ch. 161, § 10, imposes a tax of three dollars and fifty cents, on each sidt in the circuit court; and we perceive no reason ivhy a proceeding by motion, should be exempted from this tax.

It has been repeatedly held, that this summary remedy, given by statute, is a substitute for the common law action on the case; and that it is, in substance and legal effect, a suit, or action; 6 Humph., 332-335. In this view, the cleric properly included the State tax in the bill of costs; and in ordering that item to be struck out, tlie court erred.

The judgment will be reversed; and judgment rendered here for the amount of said tax.