9 N.M. 405 | N.M. | 1898
This case was heard in the supreme court of this territory at the July term, 1897, and judgment was given, for the appellant. On January 15, 1898; a cost bill was issued by tbe clerk of tbis court, against Givens, amounting in all to tbe sum of $508.70. On January 21, 1898, shortly after tbe judgment of tbe supreme court, tbe appellee filed a motion to retax costs, claiming, first, that tbe item of $55.50 for stenographer constituted no part óf tbe costs, for tbe reason that tbe allowance made by tbe court below for tbe fee of tbe master necessarily included any expense be may have incurred for a typewriter in tbis cause; and, second, that tbe item of $206 for printing transcript, besides being charged at a rate double that allowed by law where tbe printing of a transcript forms a part.of tbe costs, can not form a part of tbe costs in tbis case, for tbe reason that tbe amount involved is less than a thousand dollars, and tbe printing of tbe transcript is not required by law and is wholly voluntary, and no charge therefor is allowed by law.
• For some reason which does not appear, and in vacation, shortly after tbe filing of tbe above motion, tbe clerk made out a new cost bill, omitting tbe item of stenographer’s fees, $55.50, and reducing tbe item of printing transcript from $206 to $123 and adding tbe costs in tbe supreme court, some $22.85 for some reason were omitted from tbe former taxation and on January 31, 1898, issued execution, tbe costs being taxed at $394.05.
We regard this claim of the appellant as the correct one. If both parties were satisfied with the action of the clerk, the motion to retax conld be stricken from the docket on motion, and nothing would now be before ns; but as the appellee is dissatisfied and desires to proceed with the hearing, the whole matter of the taxation must come up. Counsel for the appellee can not contend that the action'of the clerk in his second taxation was final as to what helped him, and yet not so as to the single item of costs of $123 for printing which they now claim is incorrect.
We will consequently consider the whole matter of the disputed items.
Section 3147 of the Compiled Laws, so far as it applies to civil cases, reads:
“In civil cases removed into said supreme court for review, appellants, or plaintiffs in error, shall not be required to print the record, nor any part thereof, unless the amount of the judgment to be reviewed or the value of the property in dispute shall exceed one thousand dollars, exclusive of costs.”
Does the judgment in question come under the provisions of this act, as being for less than $1,000 ? Our court follows the same rule as the supreme court of the United States, and that court holds that the amount of the judgment with interest thereon to the time of the rendition of the judgment of the court from which the appeal is taken (Steamship Co. v. Mechant, 133 U. S. 375), but excluding costs, determined the jurisdiction. The judgment in this case was given January 30, 1897, and was for the sum of $918.50, carrying interest at the rate of twelve per cent per annum from the date of its rendition; consequently that amount determines the jurisdiction. There is no question brought as to the value of the property giving jurisdiction; no affidavit was ¿filed showing that the value of the property in dispute was over a thousand dollars. . The appellant had collected a life insurance policy on the life of one Calvin Fisk, for the sum of $5,000 and presumably had all the money in his possession, but Givens only obtained judgment for $918.50, and after such judgment that amount with interest was all that .he claimed from Veeder. And as the money was separable and divisible the amount above that sum was not in question. "VVe hold that the amount in controversy in this case is below the $1,000 limit.
The charges for stenographer used by the master can not therefore be taxed.
As to the printing of the record we do not regard it as a taxable charge, there is no law compelling the printing of a transcript involving less than $1,000, and if printing is done in such cases it is voluntary and is an unnecessary expense, and no court will tax costs for unnecessary expenses, unless required to do so by an affirmative provision of law. In both •of the taxations appear items for printing transcripts, in the first $206, and in the second $123. This printing was useless and should be disallowed. Wilson v. Railroad, 57 Mich. 155; Parsonette v. Johnson, 40 N. J. Eq. 32; Crippen v. Brown, 11 Paige (N. Y.), 628; Spary v. Robinson, 24 W. Va. 527; Hussy v. Bradly, 5 Blatchf. 210.
We are of the opinion that the motion of the appellee should be granted, and the items complained of in the motion should not be taxed as costs, and it is so ordered.