172 P. 318 | Utah | 1918
The plaintiffs commenced an action in September, 1915, against the defendant, hereinafter called appellant, in the district court of Weber county, and recovered a judgment in that action against the appellant. The appellant appealed the case, and this court reversed the judgment and awarded costs to the appellant. Hirsh et al. v. Ogden Furniture & Carpet Co., 48 Utah, 434, 160 Pac. 283. The judgment of reversal was filed in this court September 28, 1916. Oo October
“Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after*560 the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment. The costs to be awarded to a party as provided in this and the preceding sections shall include the reasonable cost of printing transcripts and briefs, and the cost of transcribing the stenographer’s notes or minutes of the trial or hearing.”
Plaintiffs’ counsel, in his motion to strike, also reserved the right, in case the motion to strike should be denied, to move for a retaxation of the costs. He also appeared specially for that purpose.
On January 6, 1917, appellant’s counsel appeared and served a notice on Plaintiffs’ counsel that on the 8th day of January, the date fixed by the court, he would apply to the district court to be relieved of his default in failing to serve and file his cost bill within the thirty days required by the foregoing statute upon the grounds of “mistake, inadvertence, surprise, and excusable neglect.” The motion was supported by affidavits, and the court also heard oral evidence in support of the motion, and likewise received affidavits and heard oral evidence in opposition to appellant’s motion to be relieved, as appellant’s counsel states it, “from the default in failing to file its cost bill within thirty days after the filing of the remittitur from the Supreme Court.” After a full hearing of the evidence produced and the contentions of both sides, the district court found in favor of plaintiffs, granted their motion to strike appellant’s cost bill, and entered judgment accordingly, from which judgment this appeal is prosecuted.
The principal errors that are assigned relate to the court’s findings and conclusions of law and judgment. Appellant’s counsel, with much vigor, contends that the court erred in not granting the relief asked by it in its motion to be relieved as before stated. Much evidence was presented by appellant in support of the motion and much more was adduced by plaintiffs in opposition thereto. The view that we take of this controversy makes it unnecessary for us to state the evidence even in condensed form. Counsel for appellant contends that
“The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding * * *; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
Counsel contends that the filing of the remittitur by plaintiff’s counsel on October 31, 1916, as before stated, was a proceeding taken against appellant, and,- in view that it was filed without notice to it or its counsel, the foregoing provisions apply. If it be conceded that the provision quoted from the statute apply to a case of this kind, yet in view of the evidence, and for the reasons hereinafter appearing, there is nothing upon which the discretion of the district court could have been based. It must not be overlooked that plaintiffs ’ counsel, in causing the remittitur from this court to be filed in the district court, did precisely what the statute authorized him to do. Comp. Laws 1907, section 3321, reads:
“'The clerk of the Supreme Court shall remit to the lower court the papers transmitted to the Supreme Court on the appeal, together with the judgment or decision of the Supreme Court thereon, within thirty days after the same shall have been made, unless the Supreme Court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such parties to move for a rehearing.”
No application for a rehearing by either party was filed after the case was decided by this court. While the judgment in favor of plaintiffs in the principal case was reversed by this court, yet such reversal, in the main, was based upon the fact that appellant had properly tendered the amount of plaintiffs’ claim before the action was commenced, and had thereafter kept that tender good, and for that reason the action was prematurely brought. By making tender, however, appellant had admitted the justice and correctness of plaintiffs’ claim, and, moreover, had relieved itself from the payment of inter
As we read the statute, plaintiffs’ counsel had a perfect legal right to have the remittitur go down and to file the same in the district court just as was done. Nor is there anything in the statute which required him to serve notice on appellant or its counsel that the remittitur had been sent
Apart, however, from the statute, we think all the authorities are to the effect that costs are a creature of statute, and that a party who is entitled thereto, in order to
In the case of Candler v. Washoe Lake, etc., Co., 28 Nev. 422, 82 Pac. 458, the decision of the court is correctly reflected in the first headnote, which reads:
"An appellant, to whom costs have been awarded on appeal, must comply with the statute and rules of the court governing the taxation of costs, in order to make the decision effectual."
"Costs áre only recoverable by force of the statute, and the allowance of thorn, in any case, will depend on the terms of the statute." Apperson v. Mutual, etc., Co., 38 N. J. Law, p. 390.
In D. M. Osborne & Co. v. Paulson, 37 Minn. 46, 33 N. W. 12, it is held that if a party who is entitled to costs fails to claim them as provided by the rules of the Supreme Court, which rules are the source of the right to recover costs in Minnesota, he forfeits his right to recover costs.
In 7 R. C. L. section 31, p. 803, the law respecting the right to recover costs in appellate courts is stated thus:
"The practice of awarding and taxing, the time within which eost bills must be filed, and the items allowable, are all matters of statutory regulation, amplified by rules of court. ’ ’
In 11 Cyc. 204, it is said:
"The right to costs on appeal or writ of error are dependent solely on statute. In the absence of special statutory authorization, sueh costs cannot be allowed."
In Murray v. Whittaker, 17 Ill. 230, and in Campbell v. Weakley, 7 B. Mon. (46 Ky.) 22, it is held that the adverse party is not entitled to notice of the sending down of the mandate (remittitur) from the appellate court, and that either party has the right to file the mandate in the lower court without notice to his adversary.
Counsel for appellant has cited a number of eases which he claims favor his contention, among which are the following: Smith v. Alford, 31 Utah, 346, 88 Pac. 16; Douglas v. Badger State Mine, 41 Wash. 266, 83 Pac. 178, 4 L. R. A. (N. S.) 196; McDonald v. Burke, 3 Idaho (Hasb.) 493, 28 Pac. 440, 35 Am. St. Rep. 289; Burnham v. Hays, 3 Cal. 115, 58 Am. Dec. 389;
We have carefully considered the decisions in the foregoing cases, as well as all others cited by counsel, and we are constrained to say that none is in point or can be given effect upon the controlling question in the case at bar. Some of the decisions referred to refer to the setting aside of defaults, others refer to the question of what constitutes a proceeding, while still others refer to when a party by appearing in a case or proceeding waives the right to object to certain proceedings or confers jurisdiction over his person in the court.
The only question involved in this proceeding to which any of the foregoing cases can be said to even remotely refer is the question of whether plaintiffs ’ counsel, by moving to strike the cost bill in question and at the same time reserving the right to assail the correctness of the bill, had waived
•In view, therefore, that the appellant has wholly failed to
We desire to add in conclusion, however, that in view that section 3351 has been amended as before stated, and for that reason the question here involved cannot arise again, we have stated no more of the facts or proceedings of this ease than was absolutely necessary to decide the question presented.
The judgment is therefore affirmed, plaintiffs to recover costs.