Gallup Electric Light Co. v. Pac. Improvement Co.

• Decision Date: 26 August 1911
• Citation: 16 N.M. 279,117 P. 845
• Parties: GALLUP ELECTRIC LIGHT CO.v.PACIFIC IMPROVEMENT CO. et al.
• Court: New Mexico Supreme Court

16 N.M. 279

117 P. 845

GALLUP ELECTRIC LIGHT CO.

v.PACIFIC IMPROVEMENT CO. et al.

Supreme Court of the Territory of New Mexico.

Aug. 26, 1911.

Appeal from District Court, McKinley County; before Justice Abbott.

Action by the Gallup Electric Light Company against the Pacific Improvement Company and others. On motion to stay an execution for costs. Motion denied.

Under Comp. Laws 1897, § 3148, a party prevailing in the Supreme Court is entitled to recover his costs, and to have execution issue therefor in the absence of any specific order.

E. W. Dobson, for appellants. Reid & Hervey, for appellee.

ROBERTS, J.

In the opinion in this case, heretofore handed down at this term (113 Pac. 848), the judgment of the lower court was reversed, and no specific order was made as to the costs. The clerk of the Supreme Court issued execution for costs accruing in this court, and also for all costs that had accrued in the district court from the inception of the cause.

[1] The appellee has filed a motion for an order staying the enforcement of costs because no specific order was made in that regard. In the case of King v. Tabor, 15 N. M. 488, 110 Pac. 601, this court held that the provisions of section 3148, C. L. 1897, regarding costs, applies to the Supreme Court as well as to the district court. This being true, and appellants having prevailed in this court, they were entitled to recover their costs against appellee and to have execution issue therefor and no specific order was necessary.

[2] We do not think that the clerk should have included in the execution the costs incurred in the district court prior to the rendition of the judgment. The effect of the reversal of the judgment was to impose upon the appellee the payment of all costs occasioned by the erroneous judgment. This included the costs accruing in the district court after the rendition of the judgment and also those in the Supreme Court, including fees for transcript. The costs in the district court up to the time of the rendition of the judgment from which appeal was taken will abide the final determination of the suit, and be taxed against the unsuccessful party. See 11 Cyc. 210, and authorities cited. A statute identical with our section 3148 is construed in the case of Clifton v. Sparks, 29 Mo. App. 560. The court says: “And all costs incurred consequent upon the erroneous action of the circuit court, which necessitated the appeal, would be properly taxable against the...