Wallace v. Workmen's Comp. Bureau

• Decision Date: 08 July 1940
• Docket Number: No. 6630.,6630.
• Citation: 70 N.D. 193,293 N.W. 192
• Parties: WALLACE v. WORKMEN'S COMPENSATION BUREAU et al.
• Court: North Dakota Supreme Court

70 N.D. 193

293 N.W. 192

WALLACE

v.WORKMEN'S COMPENSATION BUREAU et al.

No. 6630.

Supreme Court of North Dakota.

July 8, 1940.

Syllabus by the Court.

1.Where a party to an action in the district court has objection to the re-taxation of costs, his remedy is to have the re-taxation reviewed by the court upon motion to modify the judgment entered upon the re-taxation.

2.Costs are purely the creature of statute, and an allowance therefor can not be made by the trial court unless authorized by the statute.

3.Where, upon an appeal from the judgment of the district court granting a peremptory writ of mandamus, this court affirmed the judgment of the lower court, disposing of all matters that were in controversy and adjudging that the respondent recover his costs and disbursements upon the appeal, it is the duty of the district court to enter judgment in compliance with the order of this court, with such costs on the appeal as are provided for by statute.While under the provisions of section 7795 of the compiled lawsthe trial court has discretion in certain actions to allow costs for or against either party, it has no power upon remittitur to amend this judgment appealed from so as to include in the original judgment a further judgment for $200 as reimbursement to the prevailing party for the expenses and costs on the original proceeding, not having exercised its discretion at the time of ordering judgment, even if such section 7795 would permit such an allowance in the mandamus proceeding.

4.Section 396a17 of the Supp., as amended by sec. 6, chap. 286 of the Session Laws of 1935, provides, that in proceedings brought against the workmen's compensation bureau, “The cost of such proceedings, including a reasonable attorney's fee to the claimant's attorney to be fixed by the trial judge, shall be taxed against the Bureau, which fee shall cover and constitute the entire remuneration for the claimant's attorney for all services in connection with such appeal, it being the intention to relieve the claimant of all expenses for attorney fees.”

However, the district court has no power, under such provision, to tax and allow an attorney's fee, except in a case where an appeal is taken from the final action of the bureau in denying the right of a claimant to participate at all in the workmen's compensation fund, and such provision has no application to a proceeding for the purpose of obtaining a writ of mandamus to allow the inspection of records of the bureau.Consequently, the allowance of an attorney's fee in such mandamus proceeding is without authority of law under the provision of such statute.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Mandamus proceeding by Henry Wallace against the North Dakota Workmen's Compensation Bureau and others to compel the North Dakota Workmen's Compensation Bureau to permit an inspection of files and records pertaining to plaintiff's claim for compensation.The Supreme Court affirmed a decision in favor of the plaintiff and remanded the cause.From an order of the district court denying a motion to vacate and modify a judgment entered on remittitur, the defendants appeal.

Judgment modified and as modified, affirmed.

Alvin C. Strutz, Atty. Gen., and A. M. Kuhfeld, of Bismarck, for defendants and appellants.

L. J. Wehe, of Bismarck, for plaintiff and respondent.

BURR, Judge.

This is an appeal from an order of the district court denying a motion to vacate and modify a judgment entered upon remittitur from this court.

Heretofore the district court, on application of the plaintiff, issued a writ of mandamus, ordering the examination of certain records and documents in the possession of the bureau, with costs to plaintiff in the sum of $29.80.Upon appeal, the action of the district court was affirmed.Wallace v. North Dakota Workmen's Compensation Bureau et al., 69 N.D. 165, 284 N.W. 420.

In the remittiturthis court“Ordered, That this cause be and it is hereby remanded to the District Court for further proceedings according to law, and the order of this court.”

Further we“Adjudged, That Respondent(Wallace) have and recover of the Appellants(The Bureau) costs and disbursements on this appeal expended, to be taxed and allowed in the District Court.”

Upon this remand the district court ordered judgment for the plaintiff for “costs and disbursements on appeal * * and also the further costs and disbursements had and incurred since the entry of judgment herein * * *”; and “Further Ordered and Adjudged, That the plaintiff do have and recover of and against the defendants, also a judgment and taxed herein as part of his costs and disbursements as and for the payment of his attorney's fees the further sum of $200.00 for the trial of this action in this court and in the Supreme Court by his said Attorney * * *.”

The court ordered the clerk to add this sum of $200 to the judgment entered in the district court in the original proceedings.

Thus the judgment on remittitur included not only the item of $29.80-the costs allowed the plaintiff on the mandamus proceedings in the district court-and $44 as the costs and disbursements on the appeal to this court, but also the sum of $200 as and for attorney's fees under the order of the district court after the determination of appeal in this court.

Apparently this judgment was entered without notice to the defendants.The plaintiff served notice of re-taxation of costs, and specified therein that judgment had been entered on the remittitur in the sum of $273.80, “which sum includes the costs herein taxed by the Clerk of said Court”.

The notice further states, “You will please take notice that the plaintiff in the above entitled action will move the Clerk of said Court for the re-taxation of costs in the above entitled action, according to the statement of costs and disbursements herein served upon you in the sum of $44.00, at the Office of the said Clerk of Court * * * and that attached hereto and made a part of this Notice is a Statement of the Costs and Disbursements, together with a copy of the Order for judgment and the Judgment as entered herein.”

The defendants failed to appear, and the clerk re-taxed costs in the sum of $44.

The defendants served notice of a “Motion to Vacate and Modify Judgment on Remittitur as to Costs, and to Re-tax Costs”, based upon two grounds-the taxation of an item of $7 (later abandoned); and the ordering of judgment by the court and the entry of judgment in the sum of $200 for attorney's fees, alleging: “The allowance * * * is wholly illegal and without warrant in law and without any statutory basis therefor.”

The court denied the motion, and defendants appealed, specifying as error the entry of that portion of the judgmenton remittitur which gave to the plaintiff additional judgment for $200 as attorney's fees, and “denying the motion of the defendants to vacate and modify the judgment on remittitur as to costs, and to re-tax costs.”

Plaintiff urges that as the judgment entered on the remittitur allowed $200 attorney's fees; as the defendants herein failed to appear at the re-taxation of costs; and as the attorney's fees as fixed by the trial court were allowed as costs, the default of the defendants estops them from moving to have the judgment modified; that the district court had no jurisdiction to entertain any motion to vacate and modify the judgment; and “this being a mandamus action and special proceeding that the Court had power to allow and tax the costs and attorney fees as allowed, under general statutory provisions, if not under the Workmen's Compensation Act; * * *.”

[1] Where a case is remanded to the district court and judgment is entered on remittitur with taxation of costs by the clerk, and the defeated party is dissatisfied with the re-taxation, his remedy is a motion in the district court to modify the judgment.

Section 7802, Compiled Laws, gives the district court power to review a re-taxation of costs upon motion, and in his order “made upon such motion may allow or disallow any item objected to before the taxing officer, in which case it has the effect of a new taxation.”Such action of the clerk is reviewable by the court that orders the judgment.SeeIn re Kirby, 10 S.D. 414, 73 N.W. 92, 907, 39 L.R.A. 856, 859, andSorenson v. Donahoe, 12 S.D. 204, 80 N.W. 179.

Hence, even if we consider the allowance of $200 merely as an item of “costs”, the defendants pursued the proper remedy in moving the court to review and modify the judgment that was entered allowing this item.

The sole issue before us is the power of the district court on remittitur to allow the plaintiff the additional sum of $200 as judgment against the defendants to reimburse the plaintiff for attorney's services.

The appellants urge that the trial court on “The Judgment on Remittitur from the Supreme Court cannot, under the law, grant additional relief to that granted in the Judgment appealed from, the Supreme Court having upheld said Judgment in the trial Court and having made no order for additional relief, no attorney's fees having been allowed to the plaintiff by the trial Court before appeal to the Supreme Court and the costs taxed having included the statutory costs provided under the general st...