Dixon v. Second Judicial District Court of the State of Nevada ex rel. County of Washoe, 190 P. 352

190 P. 352 | Nev. | 1920

By the Court,

Sanders, J.:

This is an original proceeding in certiorari. The return to the writ shows that A. Grant Miller and Gray Mashburn, copartners doing business under the firm name and style of Miller & Mashburn, brought an action in the justice court, Reno township, county of Washoe, against J. B. Dixon, to recover the sum of $138.88 for legal services rendered the defendant under a special contract of employment. The justice rendered judgment for the full amount and taxed and included in the judgment the costs allowed by law. J. B. Dixon appealed the case to the district court, where a trial was had de novo before .said court without a jury. The court, in accordance with its findings of facts and conclusions of law, gave judgment as follows:

“Now, therefore, by reason .of the premises, it is ordered, adjudged, and decreed that the plaintiff herein have and recover from the said défendant the sum of $138.88, and also, costs of this action and an attorney’s fee of $75.”

The relator contends that the trial court was without jurisdiction, power, or authority to include in its judgment the item of $75 as an attorney’s fee. That this contention is correct; we fully agree.

1. Costs are wholly the creature of statute, and hence are not allowable in the absence of a statute permitting such allowance. 20 Cyc. 24; 5 Ency. Pl. & Pr. 110; 7 R. C. L. 792.

2. The compensation of an attorney and counselor for his services is governed by agreement, express or implied, and is not restrained by law. Rev. Laws, 5376.

The general rule is that counsel fees are not recoverable by a successful party either in an action at law or in equity, except in the enumerated instances where they are expressly allowed by statute. Mooney v. Newton, 43 Nev. 441; Miller v. Kehoe, 107 Cal. 340, 40 Pac. 485. And, in the absence of a statute authorizing it in plain terms, no such fee can be taxed on appeal. 11 Cyc. 231; 5 Standard, 1009.

Turning to our statute, we find no warrant therein for the allowance of an attorney’s fee on appeal from a justice court. When an action commenced in said court is tried anew on appeal, the trial must'be conducted in all respects as. other trials in the district court. Rev. Laws, 5794. But there is nothing in this provision or under any other section of the practice act that confers upon the district court power to award costs not expressly authorized by statute.

3. The inquiry on a writ of certiorari will not be extended further than to determine whether the inferior tribunal has jurisdiction to make the order complained of.

Being of the opinion that the court exceeded its jurisdiction in awarding an attorney’s fee, the judgment will be modified according to the views here expressed. As thus modified, the same will be and is hereby affirmed.