Roberson v. Draney

182 P. 212 | Utah | 1919

FRICK, J.

This is an appeal from a judgment of the district court of Weber county entered February 11, 1919. The judgment appealed from is based on a motion of the plaintiffs in which they moved the district court to relax and to disallow certain costs which were allowed in this court on a former appeal of this case, on which appeal (53 Utah, 263, 178 Pac. 35) this court, on the 18th day of December, 1918, entered judgment reversing the judgment of said court and directed it to dismiss the action and awarded costs taxed in this court to the defendants. The costs involved here are a part of the expense of printing the abstract of the record on the former appeal by the defendants, who were appellants on the former appeal.

Rule 11 (33 Utah, ix, 175 Pac. vii) of this court, among other things provides that the “expense of printing abstracts and briefs, not to exceed ninety cents for each page of actual printed matter, may be taxed as other costs. ’ ’ In accordnaee with that rule, the cost of printing appellants’ abstract was awarded to them by the judgment of this court. The appellants on the first appeal obtained a remittitur from this court in due time, and, pursuant to Comp. Laws Utah 1917, section 7048, filed a memorandum of their costs in the district court from which the former appeal was taken. That section reads as follows:

Whenever costs are awarded to a party by an appellate court, if such party claims costs, lie shall, within thirty days after the remittitur is filed with the clerk helow, serve upon the opposite party a memorandum of his costs, verified as prescribed by law, and deliver the same to the clerk of the court below; provided, that if a remittitur be filed by the party against whbm the costs are awarded, that party shall serve written notice of the filing thereof on the party to whom the costs are awarded, and the period for filing the cost bill shall begin to run with the service of such notice. The cost 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 of transcribing the stenographer’s notes or minutes of tbe trial of bearing. Tbe opposite party, may, within ten days after service of the memorandum of costs, upon notice given, move tbe court below to correct tbe bill of costs as in other cases. Upon tbe decision of the motion, the clerk shall forthwith attach the memorandum of costs to the remit-titur, and annex both to the judgment roll, and enter minutes of his doings in the judgment docket. Thereafter the judgment of the appellate court shall constitute and stand as the judgment of the court below, and become a lien upon the real property of the party against whom the costs are awarded, with the right of execution therefor as in other cases.”

After tbe remittitur was filed, the plaintiffs filed their motion in said court to retax and to disallow the costs for printing certain pages of the printed abstract used on the former appeal, upon the alleged ground that the printed abstract contained “matter not properly or necessarily a part of the abstract, ’ ’ and the district court made an order allowing plaintiffs' claim in part and entered judgment accordingly. The order and judgment read as follows:

“Plaintiffs' objections to defendants’ cost bill on appeal in this action having heretofore been argued and submitted to the court and by the court taken under advisement, comes now the court and, being sufficiently advised in the premises, sustains said objections as to the following pages of the abstract on appeal, 259 to 308, both inclusive, and 330 to 346, both inclusive, making 67 pages in all; for the reason that the matters and proceedings set forth thereon are not properly a part of the record on said appeal:

“It is, therefore, hereby ordered that defendants’ cost bill be reduced in the sum of $50.25, to the sum of $656.17 which sum is hereby taxed as defendants’ reasonable costs and disbursements on appeal.”

The plaintiffs appeal from the judgment, and the only error assigned is that the “court erred in allowing defendants’ costs for printing certain pages of the abstract” for the reasons before stated. Upon the other hand, counsel for defendants have assigned cross-errots, insisting that the district court erred in disallowing them the costs of printing the abstract as allowed by this court on the former appeal. Plaintiffs now contend, however, that, in view that the appeal is not from the whole judgment, therefore defendants may not assign cross-errors.

In view of the record, it is difficult to understand just wbat plaintiffs intend by the contention just stated. "W'e have set forth the court’s order and judgment in full. How it is possible to appeal from only a part of the judgment entered by the district court is quite beyond comprehension. If in this jurisdiction an appeal could be taken from an order as well as from the final judgment, there might be some merit to plaintiffs’ contention. In this jurisdiction, however, appeals may be taken only from final judgments and from nothing else. That has so often been declared by this court that it would be merely a work of supererogation to refer to the numerous decisions. "When an appeal is taken from a final judgment, however, the appellant may assign any error respecting any order or ruling of the court during the proceedings which may materially affect the judgment. In 1-4 this case, therefore, if plaintiffs have appealed at all, they have appealed from the judgment entered by the district court by which defendants were awarded costs in the sum of $656.17. Plaintiffs contend that that sum is excessive, and that it should have been further reduced. The judgment is therefore erroneous, if erroneous at all, because it is excessive. No other conclusion is permissible. The court’s order which we have copied is no part of the judgment proper, and, standing alone, would perform no function whatever. It is merely an introductory recital which could have been omitted without affecting the judgment. If there is any appeal, therefore, it is from the judgment and from nothing else. Appeals to this court being guaranteed by the Constitution, the proceedings relating thereto, in case the jurisdictional steps have been taken, must be liberally construed so as to effectuate the exercise of the right rather than to fritter it away by a strict construction. In referring to this matter, the Supreme Court of Nevada, in Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231, held:

“Notices of appeal are to be liberally construed, and they will be held sufficient if, by a fair construction or reasonable intendment, the court can say that the appeal is taken from a judgment * * * in a particular case.”

If that rule be applied here, plaintiffs’ appeal must be held to be from the judgment which we have set forth.

In view that such is the ease, the question arises: What is invoked on this appeal ? If the district court had the power to determine the question of whether the printed abstract of the record on the former appeal to this court contained improper or unnecessary matter, and that court found that such was the fact, then the costs claimed by the defendants may have been excessive to the extent that improper or unnecessary matter was contained in the printed abstract. Did the district court have the power to determine the question Avhat matters are or are not proper to be printed in the abstract of the record in this court, or what matters are or are not' necessary to be so printed? Plaintiffs contend that the district court is clothed with such power by reason of the statement contained in section 7048, supra, that it may “correct the bill of costs as in other cases.” But what may that court do in other cases? No doubt, in case there is a dispute respecting any question of fact, or in case there is a difference of opinion respecting the law, it may determine that question. The district court, however, may not allow either more or less than the amount fixed by statute; nor can it, in case the amount has been fixed by another court, interfere with the amount so fixed, except upon proper proceedings familiar to all lawyers. The language of the statute, therefore, must be given a reasonable construction and effect. Manifestly, that section may not be so construed as to give the district courts power to review the judgments of this court in awarding costs pursuant to the rules of this court. Whether certain matters contained in the printed abstract of the record filed in this court are proper or improper, or are necessary or unnecessary, can only be determined by this court. If the losing party claims that the costs taxed against him are excessive for the reason that either the printed abstract or the printed brief, or both, contains improper or unnecessary matter, he may apply to this court to have the matter corrected, If, however, no such application is made, or if one be made and tbe same is denied, tbe costs allowed in tbis 5, 6 conrt for printed abstracts and briefs are manifestly binding upon the district court. True it is that tbe successful party may file a memorandum of costs in the district court in. which be may claim a number of pages in excess of what are printed in tbe abstract; and that is also true with respect to tbe brief. Or be may have made a mistake in counting the pages or in computing tbe amount that is due him for printed abstracts and briefs, and in such event undoubtedly tbe district court may determine tbe matter according to tbe fact, and it may reduce tbe claim to tbe amount allowed by tbe rules of tbis court or tbe law of tbis state. That court, however, may not prescribe to tbis court what matters are proper or not, to be printed in tbe printed abstracts and briefs. To do that is to exercise the right of reviewing tbe judgments of this court, which power tbe district court does not possess. In tbis case it would not only amount to that, but it would amount to a review of the judgment of this court without giving us tbe right to pass on and correct the alleged wrong, if any.

In Lowry v. Territory, 19 Haw. 179, it is held that the inferior courts may not revise the costs allowed by tbe appelate courts. To tbe same effect is Hall v. Hall, 45 S. C. 4, 22 S. E. 881. Moreover, it would result in compélling each case n which tbe district court interfered with tbe costs allowed n tbis court to be brought to this court again after it bad men determined. "Why compel a second appeal when the mat;ers can be adjusted on the first one and by the only court in vhich is vested the final authority to review ?

This brings us to the question of whether the defendants Bnay assign cross-errors respecting the district court’s interfer-mee as hereinbefore stated. Cross-errors may be assigned to ¡orrect errors which directly inhere in the judgment appealed ’rom, but not otherwise. This court has repeatedly held that, f only a certain part of a judgment is appealed from, as in the case of Rosenthyne v. Matthews-McCulloch Co., 50 Utah, 38, 68 Pac. 957, or where an independent portion of a judgment r decree which is not involved in the appeal is sought to be corrected on cross-errors, as in the case of Big Cottonwood Tanner Ditch Co. v. Shurtliff, 49 Utah, 569, 164 Pac. 856, and in the case of McCornick & Co., Bankers, v. National Copper Bank., 49 Utah, 296, 163 Pac. 1097, cross-assignments 7-9 of error cannot reach such parts of the judgment but eross-appeals are necessary if it is intended to review the judgments referred to. Where, however, as in the case of Railroad v. Board of Education, 35 Utah, 13, 99 Pac. 263 cross-assignments of error directly go to the things which are necessarily involved on the appeal, this court may consider the cross-assignments of error. Now, in this case, plaintiffs appeal from a judgment in which they contend the court erred in awarding defendants costs in excess of what they are entitled to, and, upon the other hand, defendants assert that the court awarded them an inadequate amount of costs, and hence the judgment is erroneous for that reason. Plaintiffs’ assignment of errors and defendants’ cross-assignment of errors therefore manifestly relate to the same judgment and to the same act of the court. The defendants are therefore clearly within their rights in availing themselves of the cross-assignment of errors. If therefore we are right in our conclusion that the district court was powerless to determine the matters to which we have referred, it committed manifest error in striking certain pages from the printed abstract and in denying the defendants the costs taxed in this court for those page's, and in entering the judgment before stated. It may well be that the pages complained of, or some of them, contained improper or unnecessary matter ; but that question should have been presented to this court, and not to the district court.

For the reasons stated, the judgment is reversed, and the case is remanded to the district court of Weber county, with directions to reinstate the amount stricken by that court and to enter judgment for the defendants for the amount of costs allowed in this court. Defendants to recover costs on this appeal. *

CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.