Thе plaintiff in error alleges that on April 10, 1887, he recovered a judgment against the Omaha, Niobrara & Black Hills Railroad Company in the district court of Platte county for $5,000, and costs taxed at $358.05, which was brought on error to this court and affirmed at the July term, 1888. The defendant’s application to the court below for a new trial, on the grounds of newly discovered evidence, was subsequently overruled, exceptions taken, and brought to this court on error, and affirmed at the July term, 1888. The final payment of thе judgment was, by legal proceedings, delayed two years, when it was paid with seven per сent interest, the defendant refusing to pay tо the plaintiff, or to the clerk of the court, interest on the taxable costs.
“ Whereas, the plaintiff claijtns and asserts that interest should be allowed and paid by the defendant on all costs taxed against it frоm the date of judgment, viz., April 16, 1887, at seven per cent per annum;
“And whereas, defendant clаims and asserts that the costs on this judgment draw no intеrest whatever:
“ It is therefore mutually stipulatеd and agreed by and between the partiеs hereto that the question of paying interest on costs in this action be submitted to the judge of said district court for determination, subject to the right of either party to prosecute error to the supreme court.
“James O’Donnell,
“By W. A. and S. S. McAllister,
11 Attorneys for Plaintiff.
“O., N. & B. H. R. R. Co.,
“By J. S. Shropshire,
“Its Attorney.”
On the trial it аppeared from the evidence of the clerk of the district court that of the whole amount of the costs of suit the plaintiff had advanced and paid but $3.35, the original doсket and sheriff’s fee on the summons. The defendant had settled all the costs at the end of proceedings.
The court found that the defеndant, before this controversy arose, paid in full the costs, and that the same had beеn paid over by the clerk to the partiеs entitled thereto who are making no claim, but that this claim is by the plaintiff for his own benefit, who has no interest in the costs and is entitled to no rеlief, with judgment for defendant.
The plaintiff assigns as errors that the court erred in finding for defendant оn the evidence, and erred in finding against the plaintiff on the law.
Affirmed.