Elfring v. New Birdsall Co.

• Decision Date: 07 October 1903
• Citation: 96 N.W. 703,17 S.D. 350
• Parties: ELFRING et al. v. NEW BIRDSALL CO.
• Court: South Dakota Supreme Court

96 N.W. 703

17 S.D. 350

ELFRING et al. v. NEW BIRDSALL CO.

Supreme Court of South Dakota

October 7, 1903

Appeal from Circuit Court, Codington County; Julian Bennett, Judge.

Action by John Elfring and others against the New Birdsall Company. From the clerk's taxation of costs on appeal, defendant appeals. Affirmed.

George W. Case, for appellant. John B. Hanten, for respondents.

HANEY P. J.

In the decision heretofore rendered in this action, modifying the judgment of the court below, the appellant was allowed costs and disbursements in this court as if the case had been reversed. Elfring v. New Birdsall Co. (S. D.) 92 N.W. 29. In its notice of taxation, appellant claimed the following items: "For stenographer's fees to perfect appeal record, $35," and "for appeal bond $17.50," objections to which, interposed by the respondent, were sustained by the clerk, and the appellant appealed.

The first item was allowable, under Comp. Laws 1887, § 484; Ellis v. Wait, 4 S. D. 504, 57 N.W. 232; Novotny v. Danforth, 9 S. D. 412, 69 N.W. 585. That section read as follows: "Such reporter shall, on the request of either party in a civil or criminal case, make out such transcript and deliver the same to the party desiring it, on payment of his fees therefor by such party at the rate per folio as provided in section 483, and the amount allowed such reporter for transcripts required in the case shall be taxable costs." In 1893 the section was amended to read as follows: "Such reporter shall, on the request of either party in a civil or criminal case, make out and certify such transcript and deliver the same to the party desiring it, on payment of his fees at the rate of ten cents per folio, and such transcript when certified by the reporter to be a correct transcript of his notes of the evidence proceedings and rulings shall be prima facie evidence of the testimony given and of the rulings and decisions of the court and of the proceedings had upon the trial; for each carbon copy of such transcript in civil cases the reporter shall when such copy is requested receive five cents per page." Laws 1893, p. 149, c. 87, § 2. It is well settled that costs and disbursements are creatures of statute, and cannot be allowed in the absence of statutory authority. 5 Ency. Pl. & Pr. 110. It will be observed that the words "and the amount allowed such reporter for transcripts required in the case shall be taxable costs" are omitted...