Rhodenbaugh v. Stingel

• Decision Date: 11 July 1918
• Citation: 31 Idaho 594,174 P. 604
• Parties: W. W. RHODENBAUGH et al., Appellants, v. E. STINGEL et al., Respondents
• Court: Idaho Supreme Court

174 P. 604

31 Idaho 594

W. W. RHODENBAUGH et al., Appellants, v. E. STINGEL et al., Respondents

Supreme Court of Idaho

July 11, 1918

APPEAL-DRAINAGE DISTRICT-JUDGMENT-COSTS.

1. The right to appeal, if it exists, must be found in the constitution or statutes.

2. An order declaring a drainage district organized is not a final judgment.

3. The right to costs is statutory, and their allowance as a matter of course is dependent upon, and incidental to, a final judgment.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Petition for organization of drainage district. District organized and petitioners filed cost bill. From an order sustaining, in part, a motion to tax costs, petitioners appeal. Dismissed.

Appeal dismissed. Costs awarded to respondents.

B. F Neal, for Appellants.

The fact that items not included in the assessment-roll by the commissioners can never otherwise be paid, makes the judgment or order organizing district, as to this proceeding, in its nature a final judgment. (Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157, 1160.)

In the present case the judgment is final as to the costs in controversy, and if they are ever paid it must be by virtue of this appeal and an order entered thereon. (Davie v Davie, 52 Ark. 224, 20 Am. St. 170, 12 S.W. 558; Forgay v. Conrad, 6 How. (U.S.) 201, 206, 12 L.Ed 404, 406; Thompson v. Dean, 7 Wall. (U.S.) 342, 19 L.Ed. 94; State v. Shall, 23 Ark. 601; Brush Electric Co. v. Electric Improvement Co., 51 F. 557, 2 C. C. A. 373; Williams v. Morgan, 111 U.S. 684, 689 4 S.Ct. 638, 28 L.Ed. 559; State v. District Court, 28 Mont. 227, 72 P. 613; Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P. 709; Curtis v. Richards, 4 Idaho 434, 95 Am. St. 134, 40 P. 57; Victor Gold & S. Min. Co. v. National Bank, 18 Utah 87, 72 Am. St. 767, 55 P. 72.)

Eustace & Groome, for Respondents.

An appeal will be dismissed unless such appeal is taken from a final judgment or decree or from an order entered after final judgment. (Grey v. Cederholm, 2 Idaho 34, 3 P. 12; Ah Kle v. McLean, 3 Idaho 70, 26 P. 937; Hodgins v. Harris, 4 Idaho 517, 43 P. 72; Bissing v. Bissing, 19 Idaho 777, 115 P. 827; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, 691; Santti v. Hartman, 29 Idaho 490, 161 P. 249; Yeomans v. Lamberton, 29 Idaho 801, 162 P. 674; In re Organization of Drainage Dist. No. 1 of Ada County, 30 Idaho 351, 164 P. 1018; Athey v. Oregon Short Line R. Co., 30 Idaho 318, 165 P. 1116; Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165.)

There are innumerable authorities holding that a judgment or order similar to the one at bar is not a final judgment or order. (Adams v. McPherson, 3 Idaho 117, 27 P. 577; Connell v. Warren, 3 Idaho 117, 27 P. 730; Thiessen v. Riggs, 5 Idaho 21, 46 P. 829; Potter v. Talkington, 5 Idaho 317, 49 P. 14; Cady v. Keller, 28 Idaho 368, 154 P. 629; Weiser Irr. Dist. v. Middle Valley Irr. etc. Co., 28 Idaho 548, 155 P. 484; Doudell v. Shoo, 159 Cal. 448, 114 P. 579; Williams v. Field, 2 Wis. 421, 60 Am. Dec. 426.)

Costs are only allowable upon the signing and filing of the formal final judgment. (11 Cyc. 97; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25; Sellick v. De Carlow, 95 Cal. 644, 30 P. 795; McDonnell v. Huffine, 44 Mont. 411, 120 P. 792; Hepworth v. Gardner, 4 Utah 439, 11 P. 566.)

The allowance of costs in any event is dependent wholly upon statute, and where there is no statute authorizing it no costs can be allowed. (Schmelzel v. Board of Commrs. of Ada County, 16 Idaho 32, 133 Am. St. 89, 100 P. 106, 17 Ann. Cas. 1226, 21 L. R. A., N. S., 199; Steensland v. Hess, 25 Idaho 181, 136 P. 1124.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

Appellants petitioned the district judge for the organization of Drainage District No. 2 of Ada county. Objections thereto were made by certain affected land owners, including respondents. After a hearing the district was declared organized. Subsequently appellants filed a cost bill containing items, among others, of expense incurred by them preliminary to filing the petition and in preparation for the hearing thereon. Respondents objected to the allowance of certain of the items and the judge sustained, in part, their objection. Whether the amount allowed was taxed against the district or against the objectors, does not appear. This appeal is from the order disallowing certain of the items.

A motion to dismiss has been made upon the ground that the order is not appealable. The right to appeal, if it exists, must be found in the constitution or statutes. (Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165; State v. Grady, 31 Idaho 272, 170 P. 85.) Sess. Laws 1913, chap. 16, p. 58, amended by Sess. Laws 1915, chap. 42, p. 123, known as the drainage district law, by virtue of which this proceeding was had, makes no provision for allowance of costs upon an order organizing a district, nor for an appeal with reference thereto. Appellant contends, however, that the action complained of is either a special order made after final judgment, or is itself so final as to be appealable, within the terms of Rev. Codes, sec. 4807, as amended Sess. Laws 1911, chap. 111, p. 367.

This court has decided that an order organizing a drainage district, following the first hearing on the petition therefor is not a final judgment (In re Organization of Drainage Dist. No. 1, 30 Idaho 351, 164 P. 1018), therefore the order appealed from cannot be said to be one made after final judgment. Nor is an order taxing costs a final judgment. The right to costs is purely statutory (Cronan v. District Court, 15 Idaho 462 98 P. 614; Schmelzel v. Board of County Commrs., 16 Idaho 32, 133...