Dudley v. Facer
8 Utah 403
Utah
1893
Check Treatment
BlaoKbuen, J.:

This suit is brought to quiet the title to a tract of land, *404and defendants Facer and Woodland claim it, and in the pleadings and evidence their claims are set out. The court heard the case, and decided that the defendants Facer and Woodland owned the land in controversy, and dismissed the complaint, but did not give the defendants costs, and, from the order disallowing costs this appeal is taken. The appellents insist that this is a suit in which the title to land is involved, and that in such case the statute of the Territory determines the question of costs, and no discretion is left to the judge to refuse costs to the winning party. Section 904 of the Code (p. 379, Comp. Laws) provides that costs shall be allowed of course to the plaintiff on a judgment in his favor in each of the following cases; and one of the following cases is in a case where the title to land is involved. Sub-section 5. Section 906 provides: “ Costs must be allowed of course to the defendant in a judgment in his favor in the actions mentioned in § 904, and in special proceedings.” The title to real estate is clearly involved in this case. Therefore, if the statutes are binding, the court erred in refusing costs. The question of costs is a rightful subject of legislation; only it cannot make a law in conflict with the organic act of the Territory. Hepworth v. Gardner, 4 Utah, 444, 11 Pac. Rep. 566.

But it is claimed that because the organic act provides that the district courts of the Territory shall have original jurisdiction in all cases at law and in equity, and because one of the rules of equity is that the chancellor would dispose of costs according to his discretion, therefore the provisions of the statutes of the Territory above cited are nugatory. We do not think so. The regulation by the territorial legislature of costs is not such a jurisdictional question as to interfere with the full exercise of the equity jurisdiction of the district courts. In the case of Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. Rep. 293, the Supreme Court of. the United States said that the terri*405torial legislature might, to some extent at any rate, regulate the jurisdiction in equity. That suit was brought by' a man out of possession to haye his title to real estate settled in a court of equity, claiming that he was the owner, and entitled to the possession. This suit could not have been brought in the courts of the United States under their equity jurisdiction, but the court says it was rightfully brought in the district court of the territory of Arizona, because the statutes of that territory allowed it to be done. We think, therefore, that the territorial legislature of Utah can regulate the question of costs in causes in equity. The cause is reversed and remanded, with directions to the district court to allow the defendant his costs.

Zaste, C. J., and Baetch, J., concurred.