Smith v. Bartlett, 78 Neb. 359

Smith v. Bartlett

78 Neb. 359 | Neb. | 1907

Duffie, C.

This is an appeal from an order of the district court for Sheridan county retaxing costs and granting an offset of costs adjudged against the appellant ón a former appeal of this case to this court. On the first trial of the case the appellant recovered in the district court. Upon appeal to this court the judgment was reversed, with costs amounting to $92.50, which is the item offset against the costs in favor of the appellant. A second trial in the district court resulted in favor of the appellant, and on *360error this judgment was affirmed. The costs, aggregating $653.41, were taxed against the appellees, whereupon they filed a motion to retax the costs by striking out certain items, which, coming on to be heard, was in a large part sustained by the district court, and an offset of the costs adjudged against the appellant in the first error proceeding was allowed. The present appeal is from that order.

The appellant insists that the court had no jurisdiction to entertain the motion to retax costs, for the reason that it was filed after the final adjournment of the term at Avhich the judgment was given. We have no hesitation in saying that this position is not well taken. An award of costs to the successful party is as much a part of the judgment entered as the damages allowed, and the court cannot, after the term, change this award except for some statutory cause allowing the court to set aside or modify its judgments at a subsequent term. Meade P., H. & L. Co. v. Irwin, 77 Neb. 385.- .This rule does not apply to a motion made by either party to have the costs retaxed and to haAre mistakes in taxing the same corrected or costs illegally charged up against a party eliminated. If the !erk erroneously or illegally taxes up any item of costs ' \ favor of a party, the other party may, by motion made at any time, call the attention of the court to such items and insist that only proper, and legal costs be assessed against him. The court, by making such an order, does not change the judgment awarding costs, but uses its power to see that the aAvard of costs is not improperly or illegally taxed. As said in the case above cited: “Any mistake made by the clerk in taxing fees in favor of or against a party may be corrected by the court on motion at any time.”

The jurisdiction of the court to act in this case is undoubted, and the only question to be considered is: Did the court err in the exercise of that jurisdiction? In some instances, as appears from the record, witness fees were duplicated, and in others fees were taxed in favor of witnesses who were neither summoned nor testi*361fled in the case. In the case of three or four witnesses mileage was taxed in their favor from Missouri Valley, Iowa, to the place of trial,» approximating $44.40 each. One witness in whose favor mileage was taxed was an attorney in the case, and, as we read the record, one or more of the parties to the action were allowed witness fees. Section 354 of the code is as follows: “A witness shall not be obliged to attend for examination on the trial of- a civil action, except- in the county of his residence, noc* to attend to give his deposition out of the'county where he resides, or where he may be when the subpoena is served upon him.” As a general rule mileage for witnesses should be taxed for the distance only that a subpoena will run and become effective. We believe that the practice has almost universally obtained, where a witness attends without being subpoenaed, or where, being in attendance, he is called to give evidence in a case, to allow him for one day’s attendance and the statutory traveling fees for one mile. The cases are exceptional where the deposition of a witness living beyond .the reach of a subpoena will not answer every purpose in a civil action, and the rule should ordinarily be to tax the losing party with mileage for witnesses for the distance only that such witnesses must, under our statute, obey the subpoena served on them.

No complaint is made in appellant’s brief of the action of the court in offsetting the item of $92.50 taxed against the appellant on the former appeal in this court. The record does not disclose any reversible error on the part of the district court in retaxing' the costs, and for that reason we recommend an affirmance of the order appealed from.

By the Court: For the reasons stated in the foregoing-opinion, the order appealed from is

Affirmed.