Berkey v. Thompson

• Decision Date: 14 January 1905
• Citation: 102 N.W. 134,126 Iowa 394
• Parties: BERKEY v. THOMPSON, JUDGE, ET AL.
• Court: Iowa Supreme Court

126 Iowa 394

102 N.W. 134

BERKEY

v.THOMPSON, JUDGE, ET AL.

Supreme Court of Iowa.

Jan. 14, 1905.

Original proceedings by certiorari to review the action of the defendant judge in taxing the costs of a translation of the shorthand reporter's notes for an appeal to the plaintiff. Annulled.Read & Read, for plaintiff.

Voris & Haas and C. T. Jones, for defendants.

DEEMER, J.

This proceeding grew out of the case of Berkey v. Lefebure, 99 N. W. 710. An opinion was filed in that case affirming the judgment of the court below in favor of plaintiff, Berkey, save as to a modification of the amount of the recovery to the extent of $51. Pursuant to the opinion rendered, the clerk of this court taxed all the costs to the plaintiff. Thereupon, and upon June 13, 1904, plaintiff filed a motion to retax all costs in this court to the defendants and appellants. That motion was sustained. On June 7, 1904, plaintiff gave notice of intention to file a petition for rehearing, and this was followed in due season by a petition. After the ruling on the motion to retax costs was made, a procedendo was inadvertently issued to the district court, which was filed therein June 14th. This should not have been done, on account of the pendency of the petition for a rehearing. On June 15, 1904, defendants in the main suit filed a motion in the district court asking that the costs of the transcript of the shorthand reporter's notes and certain other items of cost be taxed to the plaintiff. To this plaintiff appeared, and filed a resistance, and affirmatively asked the taxation of certain costs in his favor. In this resistance plaintiff challenged the jurisdiction of the district court to make any order with reference to the costs of the shorthand reporter's transcript, and pleaded the ruling of this court in passing upon the motion to retax as a bar. After hearing the motion to retax, the trial court made an order taxing the costs of the translation of the notes to the plaintiff, and sustained the other division of the motion to retax in part only. A writ of certiorari was issued from this court to review the action of the district court in taxing the costs of the translation of the shorthand reporter's notes to the plaintiff.

Conceding arguendo that, notwithstanding an appeal to this court which does not question the general order for the payment of costs, the district court has jurisdiction to entertain a simple motion to retax, which involves nothing but a mistake of the clerk, due to omission or miscalculation, yet the right to recover costs is determined by the judgment, and so long as the appeal is pending the district court has no jurisdiction to modify or correct the same; nor, as a general rule, has the district court any jurisdiction or authority in an equity case, after an appeal to this court, to pass upon a motion to retax. Levi v. Karrick, 15 Iowa, 444. But there are certain items of cost over which the district court has no jurisdiction. It cannot in any manner control costs to be taxed in this court. It has no jurisdiction over the costs of printing, or of the fees of the clerk of this court. To so hold would result in an unseemly conflict of authority, which must at all times be avoided. Defendants concede in their motion that a translation of the shorthand reporter's notes was necessary to the presentation of their appeal, and that it was not needed for any other purpose. After the same were prepared, and used upon the appeal, and the case had been determined, this court adjudged that all costs of the appeal should be paid by the defendants, notwithstanding the slight modification of the judgment in their favor. True, the expense of the translation was not among the items taxed by the clerk of this court, but there is no authority for taxing it in the district court under such a state of facts as here appear. Code, §§ 3875, 4142. Defendants were notified of plaintiff's motion in this court to retax, and were advised of the...