13 S.D. 103 | S.D. | 1900
This is an action by the plaintiff, who was the owner of one share of the capital stock of the Northwestern Loan & Banking Company, to restrain the defendant, the” treasurer of Lake county, from selling the same for the payment of a tax levied thereon by the city of Madison for the year 1892. The findings and judgment were in favor of the plaintiff; requiring the treasurer to accept the amount tendered, and restraining him from selling the said stock. The court in its fourth conclusion of law, states “that the plaintiff is not entitled to recover costs against the defendants, or either of them, in this action, except only his actual disbursements, according to Section 5189, Comp. Laws;” and in.its judgment is the following provision: “It is further ordered, adjudged, and decreed that the plaintiff shall not recover costs against the defendants, or either of them, in this action, excepting only his actual disbursements, to be taxed by the clerk in accordance with Section 379 of the Code of Civil Procedure” (Section 5189 Comp. Laws). From this portion of the judgment the plaintiff has appealed to this court.
Prior to 1883 there were no provisions in our statutes for the recovery of costs, other than disbursements made in the action. The courts of New York seem to have held that subdivision 3, referred to, applied only to actions at law, and did not include equitable actions, and that the provisions of the section corresponding with Section 5192 were applicable only to equity cases. Pratt v. Ramsdell, 16 How. Prac. 59; Hinds v. Myers, 4 How. Prac. 356; Barker v. White, 5 Abb. Prac. (N. S.) 124; Herrington v. Robertson, 71 N. Y. 280; Riper v. Poppenhausen, 43 N. Y. 68. We think it is clear, from an examination of Section 5191, that that section was only intended to apply to actions at law. If we construe subdivision 3, § 5191, as applying to equity actions, it is difficult to understand what actions are intended by the expression “actions other than those specified in Section 5191,” found in Section 5192. In Pyle v. Hand Co., 1 S. D. 385, 47 N. W. 401, this court held that, that being an action in which the justice’s court had no jurisdiction, it was properly brought in the circuit court, and the plaintiff was entitled to his costs as matter of course, although he recovered a judgment for less than §50. There are doubtless many other cases not mentioned in that section in which, owing to the peculiarity of the action, a
Counsel for appellant contend that the decisions of the courts of the State New York in construing those sections ought not to be followed by this court, for the reason that in that state, prior to the adoption of the Code of Civil Procedure, there was a separate court of chancery, and that in «this state there has never been a separate court exercising chancery jurisdiction. But in the Code of the State of New York it is declared, “The distinctions between actions at law and suits in equity and the forms of all such actions and suits, heretofore existing, are abqlished” (Code Civ. Proc. § 3339,) and there should be in that state, thereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which should be denominated a “civil action.” This is the language of Section 4830 of our own Code of Civil Procedure. It has been frequently held by the courts of the State of New York, as well as by our own courts, that, ’while the forms of actions are abolished, the underlying prin
Appellant further contends that, if the construction placed upon Section 5192 by the court is correct, then there was an abuse of discretion on its part in holding that the plaintiff is not entitled to costs in addition to his disbursements, in view of all the circumstances connected with the case. It is true, as stated by counsel, that there has been a protracted litigation between plaintiff and defendants over the tax levied upon the stock of the plaintiff. An action was first commenced by the bank, and bn appeal to this court it was held that the banking company had no such interest as would entitle it to restrain the officers from enforcing the law. Banking Co. v. Muggli, 7 S. D. 527, 64 N. W. 1122; Id., 8 S. D. 160, 65 N. W. 442. Plaintiff then brought an action in his own name, and on appeal to this court the order of the circuit court sustaining a demurrer to the complaint was revei’sed. Macomb v. Lake Co., 9 S. D. 466, 70 N. W. 652. But, on the other hand, the amount involved in this action was very small, and the county has evidently been compelled to pay a large amount of costs in its defense. We are of the opinion, therefore, that the court below did not abuse its discretion in holding that, under all the circumstances, the plaintiff was not entitled to costs in excess of his disbursements. The judgment of the circuit court is affirmed.