State Ex Rel. Stanley v. Lujan
| Decision Date | 21 August 1939 |
| Docket Number | No. 4369.,4369. |
| Citation | 93 P.2d 1002,43 N.M. 348 |
| Parties | STATE ex rel. STANLEY et al.v.LUJAN, Judge of Seventh Judicial District Court. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Original proceeding in prohibition by the State of New Mexico, on the relation of H. E. Stanley and another, against Eugene D. Lujan, Judge of the Seventh Judicial District Court, etc., wherein the writ was dismissed. On respondent's motion for an order taxing certain items as costs against the relators.
Motion denied.
In original proceeding in prohibition against district judge wherein writ was dismissed, district judge was not entitled to order taxing as “costs and charges,” within court rule, items of expense incurred in bringing up record from district court and of traveling and other expenses of attorney who appeared to represent the district judge in the hearing in absence of showing that proceeding was not instituted in good faith. Rules of the Supreme Court, rule 24, § 6.
E. L. Medler, of Hot Springs, and W. C. Whatley, of Las Cruces, for relators.
J. C. Gilbert, of Hot Springs, for respondent.
Respondents have filed a motion in this case, which was an original proceeding here in prohibition, for an order taxing certain items as costs against the relators. The case was heretofore disposed of after hearing, by dismissal of the writ without reference to costs. See State ex rel. Stanley et al. v. Lujan, Judge, 42 N.M. 291, 77 P.2d 178.
[1] Counsel for respondents conceded that the matter of costs under Section 6 of rule 24 of Supreme Court rules rests in the discretion of the court in matters of this kind.
This rule reads: “The Court, after hearing the proofs and allegations of the parties, shall render judgment, either that a writ of prohibition absolute, restraining the respondent, shall issue, or that such writ be denied, and may make and enforce such order in relation to costs and charges as may be deemed just.”
[2] It is also conceded that the statute governing the assessment of cost in civil cases generally (section 1 of chapter 16 of the Laws of 1933) rests likewise in the discretion of the court. As a matter of course, all the costs accruing in this court were paid at the time of the filing of the suit by relators, and what respondents now desire to have done is to secure, by having this court now assess as items for “costs and charges”, an item of $17.20 incurred by respondents in bringing up a record from the district court of Sierra County which he considered necessary in defense of the prohibition suit here, and in addition, an item of $42.62 likewise certified as paid from the court funds of Sierra County as traveling and other expenses of an attorney who appeared here to represent the respondent judge in the hearing upon the writ.
Counsel for respondent urges that inasmuch as the case was here dismissed as being without merit and the respondent thus prevailing, that the circumstances surrounding the institution of the suit were such as should move this court in its discretion to allow such items as “cost” or “charges”, perhaps somewhat as a penalty.
[3] In the absence of a statute or rule of court it cannot be said that attorney fees are such items as are properly taxed as costs, or may be considered as items recoverable as damages. Dame v. Cochiti Education & Improvement Co., 13 N.M. 10, 79 P. 296; Tatavich v. Pettine et al., 31 N.M. 479, 247 P. 840; Atchison, Topeka & S. F. R. Co. v. Citizens' Traction & Power Co., 16 N.M. 163, 113 P. 813.
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