Miller v. Henderson, 76 Neb. 383

Miller v. Henderson

76 Neb. 383 | Neb. | 1906

Ames, C.

In a money action, plaintiff recovered a judgment in justice’s court from which the defendant appealed. On a trial in the district court the plaintiff also recovered a verdict, hut by a sum less by more than $20 than the amount of the judgment appealed from. In the latter court judgment was rendered for the plaintiff for the amount of the verdict, and for costs. From the order taxing costs the defendant prosecutes this proceeding.

We discover no error. The right of a litigant in a common law action to recover costs is exclusively statutory. City of Hastings v. Mills, 50 Neb. 842. Section 620 of the code enacts: “Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.” Section 986 of the code provides: “If, on an appeal by the plaintiff, from a judgment in his favor, he shall not recover a larger sum than twenty dollars exclusive of interest since the rendition of the judgment before the justice, he shall be adjudged to pay all costs in the district court including a fee of five dollars to the de*384fendant’s attorney; and in case the defendant shall demand a set-off greater than twenty dollars, and he appeals from a judgment in his favor, and does not recover twenty dollars, he shall, in like manner, pay all costs in the appellate court, including a like fee to the plaintiff’s attorney.” And section 1,013 is as follows: “If any person appealing from a judgment rendered in his favor shall not recover a greater sum than the amount for which judgment was rendered, besides costs and the interest accruing thereon, every such appellant shall pay the costs of such appeal.” Each of these two latter quoted statutes constitutes an exception to the first quoted, but neither is applicable in the present case because the plaintiff, who was sucessful in justice’s court, did not appeal, and no set-off was pleaded. We have been cited to no other statute bearing on the question and know of none, and therefore recommend that judgment of the district court be affirmed.

Oldham and Epperson, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be

Affirmed.