Richardson v. Rogers
| Decision Date | 25 November 1887 |
| Citation | 37 Minn. 461 |
| Parties | MATTHEW RICHARDSON <I>vs.</I> LUTHER Z. ROGERS and others. |
| Court | Minnesota Supreme Court |
case. It appears from the record that judgment was entered in favor of the defendants, in the form recited in the opinion, on July 6, 1886, and it does not appear that the costs were ever inserted in the judgment. This appeal was taken on January 17, 1887. Respondents move to dismiss the appeal.
Townley & Gale, for appellant.
M. R. Everett and A. C. Brown, for respondents.
The plaintiff applied to the judge of the district court, upon order to show cause, for an allowance and settlement of the bill of exceptions prepared by him in the case, to which amendments had been duly served by defendant. The application was regular in form, but was denied, and the order discharged, and from the order denying such application the plaintiff appeals. The defendants move to dismiss the appeal, on the ground that the time to appeal from the judgment has expired and no appeal has been taken, and that it is therefore too late to apply to the court for a settlement of the exceptions. The plaintiff, however, contends that no such final judgment has been entered as to limit the time to appeal, on the ground that the judgment is manifestly incomplete and imperfect, in that the costs to which defendants are entitled, by virtue of the decision in their favor, were not inserted in and made a part of the judgment. It is thereby adjudged "that this action be and is hereby dismissed on the merits, and it is further adjudged and determined that the said defendants recover of said plaintiff the sum of ____ dollars, costs and disbursements of this action."
The costs properly constitute a part of the judgment, and, unless they are waived or released by the prevailing party, he is as much entitled to have them included as other relief. For the purposes of an appeal the cases in New York and in Wisconsin hold, under substantially similar statutory provisions, that a judgment is not perfected until the costs are inserted, and hence the time to appeal does not run against the defeated party until they are properly taxed and included in the judgment. Andrews v. Welch, 47 Wis. 132, (2 N. W. Rep. 98;) School-District v. Kemen, (Wis.) 32 N. W. Rep. 42; Lentilhon v. City of New York, 3 Sandf. 721; McMahon v. Harrison, 5 How. Pr. 360; Sherman v. Postley, 45 Barb. 348, 352; Champion v. Plymouth Soc., 42 Barb. 441. While something may be said upon the other side of the question, yet we think this construction establishes the better rule.
As respects the lien or validity of a judgment, the omission to include costs, or an insertion therein of costs taxed without notice, is to be treated as an irregularity merely. Dix v. Palmer, 5 How. Pr. 233; Potter v. Smith, 9 How. Pr. 262; Tracy v. Humphrey, 1 Code R. (N. S.) 197; Leyde v. Martin, 16 Minn. 24, (38.) A party may enter and docket his judgment so as to secure a lien without waiting to give notice of taxation of costs, and, upon a retaxation, the record may be amended, and, if the costs are reduced, the amount of such reduction may be indorsed on the execution if previously issued. But as held in Champion v. Plymouth Soc., supra, a party seeking to avail himself of the statutory limitation of his adversary's right to appeal, should be held to strict practice.
In McMahon v. Harrison, supra, it is suggested that until the costs are...
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