OPINION
COBB
CH. 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. 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 re-taxation of the costs in the case, of which
motion the following is a copy:
"And
now come defendants and move the court to re-tax the costs
herein, and for cause of said motion say that on the 16th 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 set 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 was 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 2d 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 the
said referee was filed and adopted and confirmed by the
court, and judgment 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 17th day of December, 1883, it being a day of
said term of court, the said motion to re-tax
costs came on for trial to the court, upon the 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 re-tax 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 herein
before allowed shall be contracted for or received or
reserved, the contract shall not therefore be void, but if in
any action on such contract proof be made that illegal
interest has been directly or indirectly contracted for or
taken or reserved, the plaintiff shall only recover the
principal without interest, and the defendant...
