Cattle v. Haddox

• Decision Date: 11 March 1885
• Citation: 22 N.W. 565,17 Neb. 307
• Parties: CATTLE v. HADDOX.
• Court: Nebraska Supreme Court

17 Neb. 307

22 N.W. 565

CATTLE

v.HADDOX.

Supreme Court of Nebraska.

Filed March 11, 1885.

Error from Butler county.

R. S. Norval, for plaintiff.

Robberts & Fuller, for defendant.

COBB, C. J.

This cause was in this court in 1883, when the judgment of the district court in favor of the present plaintiff in error was affirmed. The case is reported in 14 Neb. 527;S. C. 16 N. W. REP. 841. There was no question of costs in that case, but it appears from the record in the case at bar that after the affirmance of the judgment in the former case, and at the December term of the district court, 1883, the defendants filed their motion for a retaxation of the costs in the case, of which motion the following is a copy: “And now come defendants and move the court to retax the costs herein, and for cause of said motion say, that on the sixteenth day of February, 1883, the action was tried upon the issues joined, before Geo. G. Bowman, as referee; that the third count in defendants' answer sets up that the contract upon which the action was brought was usurious; that the referee, in his findings, found the following facts: (1) That the note upon which this action is brought is for $445.15; (2) that the consideration for which the note was given, and the actual sum which defendants received, was $383.

“In the conclusions of law, as reached by said referee, he found (1) that the contract for the payment of the said sum of $445.15 was usurious; that the referee also found that on the second day of April, 1880, the defendants paid on said note the sum of $247.35, and that there was still due the plaintiff the sum of $135.65; and that plaintiff was entitled to a decree of foreclosure of the mortgage, as set out in the petition to secure said note. At the May term, A. D. 1883, of this court, the report of said referee was filed and adopted, and confirmed by the court, and decree ordered; that by a mistake or oversight of the clerk of this court judgment was entered and recorded against the defendants for the said sum of $135.65, and costs of suit, taxed at $108.33; that the error or mistake complained of by the defendants is that the clerk rendered judgment against them for $108.33 as costs in the case,” etc.

It further appears that on the seventeenth day of December, 1883, it being a day of said term of court, “the said motion to retax costs came on for trial to the court upon affidavits of C. A. Bemis, C. W. Barkley, and R. S. Norval; * * * and after hearing said motion upon the affidavits aforesaid and upon said last-mentioned date, the court sustained the said motion to retax the costs in said case, and thereupon ordered all of said costs to be taxed to the plaintiff, and then and there caused to be entered upon the journal of said court the following order and judgment,” etc. This proceeding is brought to this court on error.

Section 5 of chapter 44 of the Compiled Statutes provides as follows: “If a greater rate of interest than is hereinbefore allowed shall...