Williams v. Davis

157 P. 963 | Mont. | 1916

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

When this cause was before us on the first appeal (50 Mont. 142, 145 Pac. 957), the judgment and order were reversed, and a new trial ordered “at the cost of the respondents.” When appellant presented her memorandum of costs incurred on appeal, respondents moved the district court to tax all proper costs against the funds of the estate and not against them individually, and appealed from the order denying their motion.

In determining the appeals as was done, the disposition of [1] ' the costs was within the discretion of this court. (Sees. 7158, 7718, Rev. Codes.) We directed that the costs of appeal be charged against the respondents. We were not requested to modify that order, and it became final when the remittitur issued. Over that order the district court had no jurisdiction except to enforce it. It might determine disputed items of cost (State ex rel. Hurley v. District Court, 27 Mont. 40, 69 Pac. 244), but it could not change or modify the order as made [2] by this court. The costs incurred in the district court became a part of the judgment, and their disposition is reviewable only on an appeal from that judgment. (Ferris v. McNally, 45 Mont. 20, 121 Pac. 889.)

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.