28 Nev. 422 | Nev. | 1905
By the Court,
The appellant in this ease was awarded its costs upon appeal. (See page 151 of this volume.) Subsequent to the filing of the opinion and decision in the case, but before the time had elapsed for issuance of remittitur, counsel for appellant filed with the clerk of this court a cost bill, covering the fees and charges of the clerk of this court, the cost of typewriting the transcript on appeal, and what doubtless is the costs of the clerk of the lower court in perfecting the appeal. Counsel for respondent have moved to strike this cost bill from the files, upon the ground that it was not filed within the time prescribed by statute or rule of court.
While the decision in this case gave the appellant its costs upon appeal, appellant must come within the laws or rules regulating the matter of costs, to make the decision in respect to costs effectual. Costs can only be recoverable in pursuance of the provisions of statute or rule of court. (McKenzie v. Coslett, 28 Nev. 220, 80 Pac. 1070.) Subdivisions 1 qnd 2 of rule VI of this court (see page 6 of this volume) read as follows: "(1) The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record in original proceedings upon which the case is heard in this court, required by these rules to be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual mode; provided, that no greater amount than twenty-five cents per folio of one hundred words shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per folio for one copy only shall be taxed as costs for typewriting.
The method of taxing costs in this court is governed by rule VI; section 486 of the civil practice act (Comp. Laws, 3581) being applicable only to district courts. (Gray v. Gray, 11 Cal. 341; Ex parte Burrill et al., 24 Cal. 350.) In the absence of an agreement by counsel, made in open court or by stipulation filed, the provisions of rule VI relative to the time of filing cost bills must be complied with to -entitle a party to recover those costs which are required to be embraced within a cost bill, to wit, the expense of printing or typewriting transcripts, affidavits, etc. All other costs are to be taxed by the clerk in accordance with the fee bill, and for such costs a cost bill is not requisite. Rule VI is broad enough to allow the clerk of this court to tax the costs made in the court below upon the appeal in accordance with the fee bill. The record on appeal will show what costs have been made in the lower court in perfecting the appeal; but, for convenience of the clerk, appellants may provide the clerk with a memorandum of such costs, which he can verify by a reference to the fee bill.
The cost bill in this case, not having been filed within the time required by the rule, will be stricken out.