33 Mont. 529 | Mont. | 1906
delivered the opinion of the court.
Certiorari. On appeal to this court by the defendants in a cause entitled Riddell v. Ramsey et al., 31 Mont. 386, 78 Pac. 597, a judgment in favor of plaintiff and an order denying defendants’ motion for a new trial were reversed. When the remittitur went down to the district court, the defendants filed with the clerk their verified memorandum of costs and disburse ments on the appeal and caused execution to be issued therefor as upon a judgment under the statute. (Code of Civil Proc., sec. 1869.) Thereupon the plaintiff filed his motion, supported- by affidavit, to the' effect that a copy of the memorandum had not been served upon him before or after filing, and asked that the execution be stayed pending a decision by the court upon the question whether the defendants were entitled to their costs. Ex-
The contention is made by counsel for relator that, under the rule laid down in State ex rel. Hurley v. District Court, 27 Mont. 40, 69 Pac. 244, since no notice of the filing of the memorandum was given under the provisions of section 1867 of the Code of Civil Procedure, the memorandum ought to have been stricken out as a whole. Counsel calls attention to the fact that he made a special appearance for the purpose of asking that the memorandum be stricken out, and that, although he at the same time submitted the merits of plaintiff’s claim, thus asking for substantive relief, he did not thereby waive his right to have the relief demanded by his special appearance.
The district court should have stricken out the memorandum or bill as a whole. It was without jurisdiction to tax or allow any item. The respondents rely, of course, on the provisions of section 1869 of the Code of Civil Procedure, and insist that, since the defendants in the case of Riddell v. Ramsey et al., supra, complied literally with its requirements and filed their verified memorandum with the clerk within the prescribed time, they were entitled to have execution issue thereon as a matter of course, subject to be recalled on motion of the plaintiff pending a motion to tax. They contend, further, that the provisions of section 1867, touching the service of the memorandum do not apply, for, if notice need not be given, then the court has nothing to do in the premises. The difficulty with this position is that, if the • provisions of this lat
We do not think it necessary to hold section 1869 unconstitutional. The chapter of which this section is a part has to do with costs and the mode by which they may be collected. Section 1867 points out the mode to be pursued for the collection of costs in the district courts, and also in original proceedings in this court; at least it does not in terms apply to district courts exclusively. Section 1869 points out the mode by which they may be collected when awarded on appeal; but we think that all the analogies, as was stated in State ex rel. Hurley v. District Court, supra, require notice of the claim to be given under the. provisions of section 1867, or that they should be denied.
While the exact point now before the court was not raised in State ex rel. Hurley v. District Court, supra, yet what was there said as to the necessity of notice was not entirely impertinent and is wholly applicable in this esae. This rule must govern or the conclusion is inevitable that section 1869 is invalid, and that parties have no means provided by which they may collect costs awarded -to them by this court on appeal. Section 1867 clearly does apply to porceedings in this court in some respects. We think it must be held to apply also to the method of claiming in the district court costs awarded by this court on appeal, and that the method pointed out must
Nor do we think the relator, by submitting the motion to tax along with his motion to strike out the memorandum as a whole, gave the court jurisdiction of the subject matter. Costs, as costs, are allowed only by statute, and can be collected only by the method pointed out by the statute. (Orr v. Haskell, 2 Mont. 350; Riddell v. Harrell, 71 Cal. 254, 12 Pac. 67; O’Neil v. Donahue, 57 Cal. 226; Sellick v. De Carlow, 95 Cal. 644, 30 Pac. 795; Dow v. Ross, 90 Cal. 562, 27 Pac. 409.) When, therefore, the party claiming costs has failed to claim them as directed by the statute, his right to them has not attached, and the court has no other power in the premises than to strike out and disallow them on motion of the adverse party.
For these reasons we think that the district court, in proceeding to tax and allow any portion of the bill in controversy, was wholly without jurisdiction, and the order must be annulled.
At the hearing no question was made as to the remedy. We have therefore considered the ease upon the merits, without reference to the question whether the proper remedy has been invoked in this case.
Order annulled.
