10 S.D. 196 | S.D. | 1897
Upon the hearing of this special proceeding this court enterd a judgment affirming the action of the court below and awarding costs and disbursements to defendant. The clerk having taxed costs as directed by the judgment, plaintiff appealed, contending that neither costs nor disbursements should be allowed in certiorari cases commenced in this court. As the judgment gave defendant its costs and disbursements, it is difficult to discover how the clerk could refuse to tax any costs in its favor. Strictly speaking, plaintiff should have moved to modify the judgment, if his contention is tenable; but attention having been called to the matter by this appeal, the court will consider what the practice should be in these cases, and, if its judgment in favor of defendant should not include costs, it will, upon its own motion, modify the same by striking out that feature of it. Costs and disbursements, being the creature of the statute, have been uniformly denied on certiorari, as in other cases, unless expressly given by statute. 4 Enc. PI. & Prac. 321. The costs mentioned in Comp. Laws, § 5187, cannot be allowed in this case, because it is a special proceeding, and not an action; but Sec. 5189, by its terms, applies to special proceedings. It is as follows: “In all actions and special proceedings, the clerk must tax as a part of the judgment, in favor of the prevailing party, the allowance of his witnesses, the jury, officers’ and printers’ fees, the compensation of referees, the necessary expenses of taking