Thorvaldson-Johnson Co. v. Cochran

252 N.W. 268 | N.D. | 1934

The sole question involved on this appeal relates to the amount that may be taxed as costs and disbursements to the prevailing party for the amount expended in payment of premium to a corporate surety on a bond on an appeal from a justice of the peace to the district court. The facts are as follows:

In July, 1933, the plaintiff obtained judgment against the defendant by default in a justice's court. The defendant appealed to the district court on questions of law alone. He furnished the statutory undertaking for costs in the sum of $100.00 executed by a surety company. The defendant prevailed in the district court. The judgment was set aside and the defendant was awarded costs and disbursements on appeal. There were taxed in favor of the defendant costs and disbursements which included an item of $10.00 for the premium paid to the surety company on the appeal bond. The plaintiff objected, among others, to this item. The taxation of costs was reviewed before the district court and the item of $10.00 was allowed. The plaintiff has appealed and contends that in any event the defendant was not entitled to have taxed more than $5.00 for the premium on the appeal bond.

In our opinion the appellant is correct in his contention. It is elementary that costs are creatures of statute. Costs and disbursements can be awarded only in the circumstances and in the amounts prescribed by the statute. Butler Bros. v. Schmidt,32 N.D. 360, 155 N.W. 1092; 15 C.J. pp. 21 et seq. Our statute granting permission to utilize a corporate surety on an undertaking on appeal and in other judicial proceedings reads as follows:

". . . In all actions and proceedings a party entitled to recover disbursements therein shall be allowed, and may tax and recover such sum paid such corporation for executing any bond, recognizance or undertaking therein, not less than five dollars, nor more than one per cent per year or fraction thereof, on the amount of the penalty or liability in such bond, recognizance or undertaking specified, while the same has been in force." N.D. Comp. Laws, 1913, § 4906.

The bond in controversy here was in force for a period of less than one year. By the express language of the statute the amount that may be taxed as disbursements for the premium on the bond here is $5.00 and no more. Accordingly, the judgment appealed from must be modified so as to reduce the amount taxed for premium on surety bond to $5.00. It is so ordered.

BURR, Ch. J., and MOELLRING, NUESSLE and BURKE, JJ., concur.