Keller v. Harrison

• Decision Date: 17 December 1910
• Citation: 129 N.W. 57
• Parties: KELLER ET AL. v. HARRISON ET AL.
• Court: Iowa Supreme Court

129 N.W. 57

KELLER ET AL.

v.HARRISON ET AL.

Supreme Court of Iowa.

Dec. 17, 1910.

Appeal from District Court, Palo Alto County; D. F. Coyle, Judge.

Appeal from a judgment for costs and expenses upon an order of continuance. Dismissed.

See, also, 128 N. W. 851.

Deemer, C. J., and Sherwin, J., dissenting.Dwight G. McCarty and T. W. Harrison, for appellants.

E. A. & W. H. Morling, for appellees.

LADD, J.

The cause was noticed for trial at the December, 1908, term of court and, after motion for change of forum had been overruled, defendants applied for a continuance on the ground that one of them, Harrison, had suddenly become so ill that he was unable to proceed with the trial. Objections thereto were interposed, but on full hearing a continuance was announced on condition that said defendant pay the taxable costs of the term amounting to $19.50 and the expenses of plaintiff in attending court in the sum of $144, and $25 for plaintiff's attorney, as compensation for resisting the motion for continuance. A judgment was entered against said Harrison for the aggregate amount of these sums. The record does not show acquiescence in the condition on his part. On the contrary, he excepted to the ruling and has appealed from the judgment so entered. The main action was tried at a subsequent term of court, and the judgment then entered has been affirmed on appeal. See Keller v. Harrison (decided at the present session) 128 N. W. 851.

Whether the order of continuance was rightly entered, though argued by the parties, is not before us for consideration; plaintiff not having appealed. But two other points are raised: (1) Whether the judgment for costs is appealable; and (2) whether the court erred in including other than taxable costs therein.

The first of these only need be considered. At the common law, a writ of error could be brought only upon a final judgment or award in the nature of a judgment. Freeman on Judgments, § 16; 2 Cyc. 515. And the principle is well established that a writ of error or appeal from an interlocutory order, judgment or decree is not available, save on statutory authority. 2 Cyc. 586, and cases collected in note. The entry made does not come within any of the subdivisions of section 4101 of the Code, and if appealable must constitute a judgment within the contemplation of section 4100, enacting that “the Supreme Court has appellate jurisdiction over all judgments and decisions of all cases of record, except as otherwise provided by law.” Section 3769 declares that “every final adjudication of the rights of the parties in an action is a judgment,” and all of our decisions proceed on the theory that the word “judgment,” as found in section 4100, means a final judgment. See Lucas Thompson & Co. v. Pickel, 20 Iowa, 490;Williams v. Wells, 62 Iowa, 740, 16 N. W. 513;McMurray v. Day, 70 Iowa, 671, 28 N. W. 476;State v. Conneham, 57 Iowa, 352, 10 N. W. 677.

This last case was an appeal from an order forfeiting a bail bond and after holding that the defendant might prosecute an appeal, the court remarked that, “besides a judgment for costs has been rendered against the defendant and directed to issue immediately thereon. This judgment is final, and from that the defendant may appeal.” It is to be noted that this was the final disposition of the matter before the court. To recover on the bond, another action must be begun, so that it was not technically an interlocutory judgment but final, in that it disposed of the matter then before the court. The decisions are very numerous to the effect that a judgment for costs which does not dispose of the case, or finally determine some right of the party, is not a final judgment. As said in Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782: “The form of the judgment is immaterial; but in substance it must show intrinsically and distinctly, and not inferentially, that the matters in the record had been determined in favor of one of the litigants, or that the rights of the parties in litigation had been adjudicated. The costs are regulated by statute, and are an incident or appendage of the judgment, and generally are recoverable by the victor in the contest. But, as an incident, they cannot be substituted for the principal; and a judgment for their recovery is not a decision of the matter at issue; and it is therefore no such final judgment as can, by law, come within the revisory power of this court.” To the same effect, see Whitney Iron Works Co. v. Rense, 40 La. Ann. 112, 3 South. 500;Dusing v. Nelson, 7 Colo. 184, 2 Pac. 922;Kern v. Saul, 14 Ind. App. 72, 42 N. E. 496; Higbee v. Bowers, 9 Mo. 350; Bick v. Seal, 39 Mo. App. 567. “A judgment which merely awards costs to the defendant without more is not a final judgment.” Black on Judgments, § 31; Freeman on Judgments, § 16; Welch v. Tippery, 1 Neb. (Unof.) 163, 95 N. W. 491.

In Wenom v. Fossick, 213 Ill. 70, 72 N. E. 732, a demurrer was sustained and the plaintiff electing to stand on the ruling, judgment for costs was entered and execution directed. No other judgment was entered, and on an appeal therefrom it was held that this was not appealable, for that it “did not in terms dispose of the rights of the party.” To make it a final judgment, it should, according to the authorities, have contained a statement that, “it is considered by the court that plaintiff take nothing by her writ and that the defendant go hence without day,” or other words of similar import, disposing of the entire subject-matter of the litigation. See Oster v. Debereaux, 115 Iowa, 724, 87 N. W. 512;Corley v. Corley, 53 W. Va. 142, 44 S. E. 132;Hall v. Patterson, 45 Fla. 353, 33 South. 982; 2 Cyc. 592. Undoubtedly the taxation of costs or a judgment therefor may be reviewed on appeal from the final judgment. Stewart v. Colfax Consol. Co., 126 N. W. 449;Ainley v. Ins. Co., 113 Iowa, 713, 84 N. W. 504;Cloud v. Malvin, 108 Iowa, 60, 75 N. W. 645, 78 N. W. 791, 45 L. R. A. 209;Banker's Iowa State Bank v. Jordan, 111 Iowa, 324, 82 N. W. 779;Voorhees v. Ry., 71 Iowa, 735, 30 N. W. 29, 60 Am. Rep. 823;Kimpson v. Hunt, 4 Iowa, 340.

In no case has this court ever entertained an appeal from an interlocutory judgment for costs. The costs are merely incidental to the main action, and the judgment therefor or taxation thereof against a party does not involve any issue in the case. The circumstance that an execution or fee bill may issue is not controlling, for until the final determination of the cause, all interlocutory orders are reviewable by the court entering them, and undoubtedly, upon application, it may enter an appropriate order holding in abeyance the matter of costs until the final disposition of the case. The overwhelming weight of authority forbids the entertainment of appeals from interlocutory judgments for costs, relegating these for review upon appeal from final judgment. In Doe v. Dickson, 65 N. C. 179, and Cross v. Chichester, 4 Or. 114, the question as to whether the judgment were final and appealable does not appear to have been raised. In Hill v. Shannon, 68 Ind. 470, the motion was by Hill against Shannon, the...