In this еquity action before us on appeal plaintiff sought to annul an order that had been entered by the same court in a divorce action previously pending therein. In the divorce action William D. Dallas, appellee herein, was plaintiff and Hazel Denton Dallas, appеllant, was defendant. The order taxed against plaintiff $25 for defendant’s attorney’s fees. Plaintiff claims this order was void and bases his contention on twо propositions. First, plaintiff says that the presiding judge was without jurisdiction because a motion for change of place of trial had been filed by plaintiff, supported by affidavit that the presiding judge was so prejudiced against plaintiff that he could not obtain a fair trial, upon which motion thе court had entered an order of continuance to a certain date “in order to afford plaintiff an opportunity to secure аttendance of another judge with the condition that if another judge cannot be secured, the presiding judge at the term aforesaid will hear thе motion.” The other ground of plaintiff’s contention is that prior to the time the court taxed the attorney fees the plaintiff had fully dismissed the divorcе action in which the fees were taxed. Upon a hearing of the ease before us the district court found that the order in question had been еntered after an affidavit of prejudice had been filed against the presiding judge, and after the plaintiff’s ease had been dismissed. The recоrd fully warranted this finding. The court further held that at the time the order was made the court had no jurisdiction over plaintiff and no power or. jurisdiction to enter the order, and decreed that the same be canceled and held for naught. We find- no error in the conclusion reached by the district сourt. *
The record discloses that the defendant in the divorce action, relying on the provisions of section 10478, Code 1931, had filed an application for temporary alimony and attorney fees to enable her to defend the action. Nothing in nature of a cross-petition for divorce or separate maintenance was filed by defendant. Before the submission of said motion the plaintiff dismissed the case. Thereaftеr the defendant’s attorney orally moved the court to tax as costs against plaintiff an attorney fee of $25 to compensate defеndant’s attorney for services theretofore rendered in the case. This oral motion was sustained and the court entered the order involvеd in this appeal, taxing as costs against plaintiff $25 for defendant’s attorney’s fees.
We are of the opinion that in the equity action now
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before us on appeal, the ‘district court correctly held that after the divorce action had been dismissed there was in the court no power to order taxed to plaintiff the attorney fees in question. The dismissal of the divorce action terminated the jurisdiction of the court therein. After the dismissal there was nothing pending before the court upon which its jurisdiction could rest, Kiser v. Crawford,
“It is well settled in this and other jurisdictions that neither a cоurt of law nor of equity has inherent power to tax costs to the losing party in any action.” Hensen v. Hensen,
There having been no statutory authority therefor, the court was without power to tax attorney fees in the state of the record at the time the order was made. Defendant’s attorney may have had a cause of action against defendant and under certain circumstances against plaintiff for services he had rеndered, but that was a cause of action to be litigated in some proper manner other than that in which the district court at *45 tempted an аdjudication. The conclusion makes unnecessary the consideration of plaintiff’s other contentions.
In the foregoing we have considered the merits of the issues as they were before the district court. But the appellant contends that neither the district court nor this court may detеrmine these issues raised by plaintiff because, as appellant claims, there had been a former adjudication of all matters between these parties before the commencement of the instant case. To sustain such claim appellant points out the following matters: Subsequently to the entry of the order taxing the attorney fees in the divorce action plaintiff served on defendant notice of appеal therefrom; thereafter plaintiff having failed to file his abstract in this court within the statutory period, defendant filed a motion setting out that fact аnd alleging that the supreme court was without jurisdiction to entertain the appeal because less than one hundred dollars was involved, and mоved that the judgment below be affirmed or the appeal dismissed; upon said motion this court entered an order affirming the judgment below. Appellant contends that such affirmance constitutes a former adjudication of all issues raised in this equity case at bar, which was commenced subsequently to such affirmance. We cannot sustain appellant’s contention, one reason being found in the fact that a former judgment will not be effectual as a bar to an action unless it was rendered upon a trial upon the merits. If the trial went off on a technical point the judgment will be no bar. The affirmance in this court was not upon the merits. It was a judgment of affirmance for the reason that proper steps were not taken by plaintiff to secure a hearing on the merits. After the affirmance the ease stood just as though it had never been appealed. Trescott v. Barnes,