No. 2,154 | Mont. | Feb 6, 1905
delivered tbe opinion of tbe court.
Application for writ of certiorari to annul an order taxing costs. On February 14, 1900, judgment was entered in tbe district court of Silver Bow county in favor of tbe plaintiff in a cause entitled “Montana Ore Purchasing Company v. Boston and Montana Consolidated Copper and Silver Mining Com
It is difficult to determine what the intention of the court was in -making the order. If it was the purpose to amend the judgment ordered to be entered by this court, and, presumably, so entered, the order does not say so, for it contains no provision to effectuate this purpose, and under its terms the clerk was not authorized to do anything with reference to the judgment. Had the order contained such a direction, a wholly different question would have been presented as to the remedy by which the relator could have it reviewed.
An order amending a judgment already entered is a special order after final judgment, and therefore appealable under section 1122 of the Code of Civil Procedure, as amended by Act of 1899 (Session Laws of 1899, p. 146). As it is, the order does not purport to do more than allow an additional amount for costs and disbursements; in other words, it is an order taxing costs. It is therefore not an appealable order (Montana Ore Pur. Co. v. Boston and Montana Con. C. & S. Min. Co., 21 Mont. 288, 70 P. 1114" court="Mont." date_filed="1902-12-24" href="https://app.midpage.ai/document/montana-ore-purchasing-co-v-boston--montana-consolidated-copper--silver-mining-co-6640745?utm_source=webapp" opinion_id="6640745">70 Pac. 1114; Murray v. Northern Pacific Ry. Co., 26 Mont. 268" court="Mont." date_filed="1902-02-06" href="https://app.midpage.ai/document/murray-v-northern-pacific-railway-co-6640408?utm_source=webapp" opinion_id="6640408">26 Mont. 268, 67 Pac. 625) ; for, since costs are a part óf, and must be included in, the judgment, the action of the court in allowing or disallowing them, or any particular item of them, is ordinarily reviewable only on appeal from the judgment. The present order, however, cannot be reviewed by this method, for the reason that the amount allowed by it has not been included in the judgment either by amendment or modification thereof, and for the further reason that the judgment has already been reviewed on appeal, and no appeal from it will now lie.
When, upon appeal to this court, a judgment of the district court has been reviewed and affirmed, or a specific judgment has been ordered to be entered in the case, the judgment becomes final in the sense that the litigation is over and the case ended. The lower court has no further power in the premises than to carry the judgment into execution under the mandate of this
On receiving tbe mandate from tbis court tbe district court must determine all questions of law or fact wbicb necessarily arise in tbe proceedings to carry tbe judgment into execution under tbe specific directions given by tbis court. The language contained in tbe mandate “that such further proceedings be bad in said case as, according to right and justice and tbe laws of tbe state of Montana, ought to be bad,” has reference to such further proceedings as may be necessary in. tbis regard, and does not grant or contemplate tbe exercise of any other jurisdiction in tbe case. (Ex parte Sibbald v. United States, supra; In re Washington & Georgetown R. Co., 140 U.S. 91" court="SCOTUS" date_filed="1891-04-27" href="https://app.midpage.ai/document/in-re-washington--georgetown-railroad-93067?utm_source=webapp" opinion_id="93067">140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339" court="SCOTUS" date_filed="1891-04-27" href="https://app.midpage.ai/document/in-re-washington--georgetown-railroad-93067?utm_source=webapp" opinion_id="93067">35 L. Ed. 339.)
In Re Washington & Georgetown R. Co., supra, it was held that after tbe judgment of tbe inferior court bad been affirmed on appeal it was then beyond tbe power of that court to amend or modify tbe judgment of tbe appellate court, and that, if such amendment were attempted, a writ of mandamus would lie from tbe appellate court to compel tbe execution of tbe judgment in tbe terms and according to its tenor as rendered by tbe appellate court.
As tbe district court could not amend or modify tbe judgment, so it was without power to take up again the order of September 14th, and, by amendment thereto or enlargement of its scope, adjudicate questions wbicb should have been settled and determined at tbe time it was made. If tbe plaintiff was not satisfied with tbe allowance made for its necessary costs and disbursements by tbe terms of that order, no matter whether tbe court omitted tbe items in question inadvertently or inten
Counsel contend that the court had authority, under section 114: of the Code of Civil Procedure, to relieve the plaintiff by correcting an order made to its prejudice through inadvertence or mistake of the court. The section referred to provides for such relief only when the order or proceeding complained of was made or taken through the inadvertence, mistake, surprise or excusable neglect of the party himself; and even then the application must he made within six months.
Prom no point of view had the court thé power to make any order in the premises. As an appeal does not lie from the order, the present application furnishes the only adequate remedy. It follows that the order must be annulled.
Order annulled.