O'Donnell v. Omaha, N. & B. H. R. Co.

• Decision Date: 06 May 1891
• Citation: 48 N.W. 880,32 Neb. 112
• Parties: O'DONNELL v. OMAHA, N. & B. H. R. CO.
• Court: Nebraska Supreme Court

32 Neb. 112

48 N.W. 880

O'DONNELL

v.OMAHA, N. & B. H. R. CO.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

The plaintiff having recovered judgment for $5,000 damages and costs, and having paid but $3.35 for the original costs, and the whole of the judgment and costs having been settled by the judgment debtor at the end of litigation, after two years, held, that the judgment creditor is not entitled to interest on the taxable bill of costs.

Error to district court, Platte county; POST, Judge.Hampton & McAllister, and W. A. & S. S. McAllister, for plaintiff in error.

W. R. Kelly, for defendant in error.

COBB, C. J.

The plaintiff in error alleges that on April 10, 1887, he recovered a judgment against the Omaha, Niobrara & Black Hills Railroad Company, in the district court of Platte county, for $5,000, and costs taxed at $358.05, which was brought on error to this court, and affirmed, at the July term, 1887. The defendant's application to the court below for a new trial on the ground of newly-discovered evidence was subsequently overruled, exceptions taken, and brought to this court on error and affirmed, at the July term, 1888. The final payment of the judgment was, by legal proceedings, delayed two years, when it was paid, with 7 per cent. interest; the defendant refusing to pay to the plaintiff or to the clerk of the court interest on the taxable costs. On January 28, 1889, the present action was entered in the district court of said county under the following stipulation: “Whereas, the plaintiff claims and asserts that interest should be allowed and paid by the defendant on all costs taxed against it from the date of judgment, viz., April 16, 1887, at seven per cent. per annum; and whereas, defendant claims and asserts that the costs on this judgment draw no interest whatever: It is therefore mutually stipulated and agreed by and between the parties hereto that the question of paying interest on costs in this action be submitted to the judge of said district court for determination, subject to the right of either party to prosecute error to the supreme court. JAMES O'DONNELL. By W. A. and S. S. McALLISTER, Attys. for Plff. O., N. & B. H. R. R. Co. By J. S. SHROPESHIRE, Its Atty.” On the trial it appeared from the evidence of the clerk of the district court that of the whole amount of the costs of suit the plaintiff had advanced and paid but $3.35, the original docket and sheriff's fees on the summons. The defendant...