State Ex Rel. v. McCorkle , 163 Tenn. 496 ( 1931 )

Bedford, alleging reincarceration for violation of a conditional pardon, sought relief through petition for habeascorpus. The trial judge dismissed the petition and taxed the defendant with costs. On appeal the judgment was affirmed but the relator was taxed with all costs. Execution was thereupon issued but returned nulla bona. The Attorney General now moves to have the court retax the costs under section 4945 of Shannon's Code and adjudge it against the State. The section referred to reads:

"All costs accrued at the instance of the successful party, which cannot be collected out of the other party, may be recovered, on motion, by the person entitled to them, against the successful party.

No judgment can be rendered against the State for costs unless authorized by statute. Morgan v. Pickard, 86 Tenn. 210.

Section 4543 of Shannon's Code only permits taxation, inhabeas corpus proceedings, against the State when the defendant in a criminal proceeding is discharged upon habeas corpus. Under Henderson v. Walker, 101 Tenn. 229, a motion to retax in the manner provided for in section 4945 of Shannon's Code might lie on behalf of those entitled to costs, but the motion, as presented, cannot be sustained.

The remedy by motion, according to the words of the statute, is given only to the persons entitled to the costs and this right cannot be extended by implication. An officer has no right to make the motion except for fees due himself alone. Stewart v.McCuistion, 1 Heisk., 427; Tindell v. Robbins, 136 Tenn. 321; Lefibre v. Railroad, 92 Tenn. 164.

The Attorney General for the State has no such interest in the costs as would authorize him to maintain the motion. Hence the motion to retax cannot be sustained.