On Motion To Modify Decision

• Decision Date: 25 November 1913
• Citation: 25 Idaho 106
• Parties: On Motion To Modify Decision.
• Court: Idaho Supreme Court

25 Idaho 106

On Motion To Modify Decision.

Supreme Court of Idaho

November 25, 1913

SULLIVAN, J.

-There has been a motion filed by the attorney for defendant Hall to modify the decision of this court in this case. The motion is based on the findings of the lower court to the effect that George Hall and C. C.

Childs and wife were always ready, willing and able to pay the mortgage referred to in the original opinion, but that they did not know to whom payment should be made; and counsel further suggests that all of the costs in this case have been brought about because of the contention between the plaintiff Mellen and the defendants Moyses and Smith as to the ownership of said note and mortgage, and contends that the costs of that suit should be borne by the loser and not by said defendants Hall and Childs.

Had the defendants Hall and Childs desired to relieve themselves from further liability as to costs, when this suit was brought they ought to have paid the money into the court to abide the result of the contest between Mellen, Moyses and Smith. It is true, the main contention in this case has been between Mellen, Moyses and Smith as to the ownership of said note and mortgage, and therefore the costs of appeal are awarded against Moyses and Smith. Since the cause must be remanded, the trial court will see that the costs of the trial and the attorneys' fees are properly and equitably adjusted.

Ailshie, C. J., and Stewart, J., concur.