Gahagan v. Gugler

• Citation: 52 P.2d 150,100 Mont. 599
• Decision Date: 18 November 1935
• Docket Number: 7426.
• Parties: GAHAGAN v. GUGLER.
• Court: Montana Supreme Court

52 P.2d 150

100 Mont. 599

GAHAGAN v. GUGLER.

No. 7426.

Supreme Court of Montana

November 18, 1935

Appeal from District Court, Wheatland County, Fourteenth District Wm. L. Ford, Judge.

Action by Charles H. Gahagan against Walter Gugler. From an adverse judgment, plaintiff appeals.

Affirmed.

Emmet O'Sullivan, of Harlowton, for appellant.

W. C Husband, of Harlowton, for respondent.

MATTHEWS Justice.

Charles H. Gahagan brought action in the justice of the peace court at Harlowton against Walter Gugler for the sum of $97.65 alleged to be due as wages. He prayed for judgment in that amount with interest, costs, and a reasonable attorney's fee. Judgment went for the defendant, and the plaintiff appealed to the district court, where he secured a verdict for $90.81, and judgment was entered thereon. Plaintiff, within time, filed his memorandum of costs and disbursements, including items of cost in the lower court and the district court, totaling $151.75, and added thereto $40 attorney's fees. Each of the witnesses mentioned in the memorandum filed affidavit of attendance and mileage. Two days later the defendant filed a "notice of motion to tax costs," stating that on Nevember 9, 1934, at 10 a. m., "or as soon thereafter as counsel can be heard," he would move the court to make an order taxing the costs and to strike from the memorandum "certain items of alleged costs therein stated, and to adjust and ascertain the correct amount of the various items." The notice closes with the statement: "Said motion will be based upon the records and files in the above entitled cause and upon affidavits and oral testimony."

The court thereafter set the motion for hearing on November 22, 1934, and on that date the plaintiff filed a written "motion" setting out in detail the items to which objection was made, with the reasons therefor, accompanied by affidavits in support thereof. The plaintiff objected to a hearing on the motion on the ground that the notice was insufficient and the motion and affidavits were filed out of time, and moved that the motion and affidavits be stricken from the files. The court reserved its ruling, granted the plaintiff five days within which to file counter affidavits, which time was later on application of counsel for plaintiff extended an additional ten days, and granted defendant five days after plaintiff's affidavits were filed, within which to file a brief, with like time thereafter for plaintiff to file his brief. Thereupon counsel for the respective parties stipulated that, on submission of the matter, the court might "rule on the objection and motions any place in the State of Montana."

After all affidavits and briefs were lodged with the court, it made and filed its order overruling the objection to the proceeding and the motion to strike, and thereupon struck from the memorandum the item of attorney's fees and certain items of witness fees and mileage, thus reducing the costs claimed from $191.75 to $77.98, which last amount was inserted in the blank left in the judgment for that purpose. Aggrieved by the action of the court in taxing the costs, the plaintiff perfected an appeal. His notice of appeal declares that the plaintiff appeals "from that part of the judgment *** awarding plaintiff costs and disbursements in the sum of *** $77.98, *** which judgment also awards plaintiff the sum of *** $90.81 ** and from the whole thereof." The defendant moved to dismiss the appeal on the ground that it is, in effect, an appeal from the order taxing costs, from which no appeal lies, declaring that the attempted appeal from the judgment is a mere subterfuge to secure a review of the order.

The right of appeal, as well as the right to recover costs, is purely statutory and, therefore, one who successfully invokes such a right must point out the statute giving him such right. Our statute on appeals (section 9731, Rev.Codes 1921) does not provide for an appeal from an order taxing costs, and consequently an appeal does not lie from such an order; such an order can only be reviewed on appeal from the judgment. Jones v. Great Northern Ry. Co., 68 Mont. 231, 217 P. 673, 37 A.L.R. 754; City of Butte v. McKay, 51 Mont. 233, 152 P. 31; Ferris v. McNally, 45 Mont. 20, 121 P. 889; King v. Allen, 29 Mont. 5, 6, 73 P. 1107, 1108; Montana Ore Pur. Co. v. Boston & Montana, etc., Co., 27 Mont. 288, 70 P. 1114. This rule is imperative for the reason that, although the order taxing costs follows the entry of judgment in point of time, it is in theory an intermediate order, and, when taxed, the costs are inserted in the blank left in the judgment as originally entered (section 9806, Rev. Codes 1921) and become a part of the judgment theretofore entered ( In re Williams' Estate, 52 Mont. 366, 157 P. 963; Ferris v. McNally, supra), without changing the date of entry of judgment.

And even on an appeal from the judgment, "the general rule is, and always has been, both in England and in this country, that, independently of any constitutional limitation, a decree for costs only is not ordinarily appealable." Nutter v. Brown, 58 W.Va. 237, 52 S.E. 88, 89, 1 L.R.A. (N.S.) 1083, 6 Ann.Cas. 94, and long list of cases there cited. This rule is not precise and leaves considerable leeway. It is applied generally when the costs under consideration are such as are within the discretion of the court and where not granted as of course to a successful litigant by statute, but is not generally applied in the face of statutory regulation of costs. See note to Nutter v. Brown, 1 L.R.A. (N.S.) 1083, above.

In this jurisdiction the ordinary costs of suit, as provided for by statute (section 9802, Rev.Codes 1921), are allowed, of course, to the prevailing party (sections 9787, 9788, Id.), and no discretion to disallow them is vested in the trial court. Under our statutes costs awarded become an important part of the judgment, and to deny the right to review such an award merely because the prevailing party is satisfied with the judgment otherwise would be to deny justice to the litigant.

In State ex rel. Bullard v. District Court, 86 Mont. 358, 284 P. 125, 128, this court invoked the above rule, apparently in order to assume jurisdiction by writ of supervisory control and thus do justice between the parties; but in that case the question of taxing costs arose after decision on appeal and, in holding that the aggrieved party had no appeal, the court said: "But here the judgment was reversed, and when the remittitur was filed there was no judgment." Consequently, as there was no judgment from which to take an appeal and no appeal from the order striking the memorandum of costs, supervisory control was available.

In order to entitle one to appeal he must have an appealable interest in the judgment, and a mere interest in the costs, with no right to appeal with respect to other matters included in the judgment, gives such a party no right of appeal; but where statutes such as ours exist, a judgment against a party for costs, where the judgment is otherwise appealable, or where a judgment is rendered in favor of a party and is erroneous only in not giving him costs, the question of costs will be considered on appeal. 3 C.J. 627; Martin v. Porter, 84 Cal. 476, 24 P. 109. In these circumstances this court has always assumed jurisdiction and reviewed the taxing of costs on appeal from the judgment, though it be the only question presented on the appeal, and has recognized the right to prosecute such an appeal. King v. Allen, supra; First State Bank v. Larson, 72 Mont. 400, 233 P. 960, 961; Graham v. Superior Mines, 100 Mont. 427, 49 P.2d 443.

A plaintiff who has been denied a portion of the costs to which he is justly entitled under the statute "is as much 'the party aggrieved' as is a defendant against whom an unjust verdict has been rendered 'against the law,' and is entitled to be placed in the same position as a wholly unsuccessful party." Brunnabend v. Tibbles, 76 Mont. 288, 246 P. 536, 539. The motion to dismiss the appeal is denied.

The defendant has presented to this court a petition for "diminution" or correction of error in the record, supported by the affidavit of the clerk of the court showing that the minute entry of November 22, 1934, recited "ruling reserved on motion," whereas plaintiff's counsel inserted in the bill of exceptions, as settled by the court, "ruling reserved on the objection and motion to strike." The error, however, is immaterial. The court evidently considered the objection and motion as one and did in fact reserve ruling on the objection as well as the motion, for there was no ruling on either at the time; counsel thereupon stipulated that the court might later "rule on the objection and motions"; and in the order, as above shown, the court disposed of both the objection and the motion to strike. The petition to correct is, therefore, denied as unnecessary.

It is contended by plaintiff that the court erred in taxing the costs, as the "notice of motion to tax costs" is insufficient and the motion and affidavits were not filed within time. As appears above, the "notice" did not specify the items of costs to be attacked on the motion, but all the statute has to say on the subject is that "a party dissatisfied with the costs claimed may, within five days after notice of the filing of the bill of costs, file and serve a notice to have the same taxed by the court." Section 9803, Rev.Codes 1921.

There is no merit in the contention that the motion and affidavits were not filed within time; the notice only is required to be filed within the five days. Even under statutes requiring the filing of the "motion," or requiring the dissatisfied party "to move" within a specified time, it is held that the party...