When an appeal shall be taken from the judgment of a probate court or justice of the peace [magistrate] against the appellant, the costs shall be adjudged as follows:

1. A. if the judgment be affirmed, or the appellee on a trial anew shall recover as much or more than the amount of the judgment below, the appellant shall pay costs in both courts;
2. B. if, on such trial, the judgment of the appellate court shall be in favor of the appellant, the appellee shall pay costs in both courts;
3. C. if the appellant shall, at any time before the appeal is perfected, tender to the appellee any part of the judgment, and he shall not accept it in satisfaction, and the appellee shall not recover more than the amount as tendered, he shall pay costs in the appellate court, but not in the court below.

History: Kearny Code, Costs, § 3; C.L. 1865, ch. 45, § 3; C.L. 1884, § 2204; C.L. 1897, § 3150; Code 1915, § 4284; C.S. 1929, § 105-1303; 1941 Comp., § 29-104; 1953 Comp., § 25-1-4.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. The bracketed reference to "magistrate", near the beginning, was inserted by the compiler, as the office of justice of the peace was abolished by Laws 1968, ch. 62, § 40, which provides that reference to justice of the peace shall be construed to refer to magistrate court. See 35-1-38 NMSA 1978.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Appellate Review § 909 et seq.

Right to have enforcement of judgment for costs stayed pending final determination of case, 78 A.L.R. 359.

20 C.J.S. Costs § 157 et seq.