Young v. Extension Ditch Co.
| Decision Date | 21 January 1908 |
| Citation | 14 Idaho 126,93 P. 772 |
| Parties | LEE YOUNG, Appellant, v. EXTENSION DITCH CO., Respondent |
| Court | Idaho Supreme Court |
COSTS OF APPEAL-FEES OF STENOGRAPHER FOR TRANSCRIBING EVIDENCE-COSTS OF MAPS ATTACHED TO TRANSCRIPT-PAYMENT OF.
1. Under the rules of this court and the provisions of sec. 5 of an act providing for the appointment of stenographic reporters of the district court, approved February 9, 1899 (Sess. Laws, p. 163), the statutory fee paid by a party to an action to the reporter for a transcript of the evidence to be used on motion for a new trial and appeal may be taxed as costs against the party finally defeated on appeal.
2. The general theory of our law and the rules of the court in regard to costs is that the losing party shall pay them; and the prevailing party, on appeal, is entitled to recover the amount paid by him to the reporter for a copy of the evidence whenever that is needed on appeal. McDonald v. Burke, 3 Idaho 266, cited and approved.
3. In the passage of said act, approved February 9, 1899, the legislative intent was not to amend either of the several provisions of the Revised Statutes in regard to the losing party paying the costs necessarily incurred in the proceedings in which such costs are made.
4. Only necessary costs and disbursements can be recovered. The general rule is that the party who wins on appeal is entitled to recover his necessary costs and disbursements on such appeal, although the case finally goes against him.
5. Under the provisions of Rule 6 of the rules of this court forty pages of printed brief may be allowed and taxed as costs on appeal, and under paragraph 3 of Rule 8, the expense of printing the transcript on appeal in civil cases must be allowed as costs.
6. Under paragraph 7 of Rule 27, maps used on the hearing and necessary to be examined on the appeal form a part of the transcript, and copies thereof must be attached thereto, and the necessary expense of making the same may be taxed as costs on the appeal.
7. Under the provisions of Rule 19, the judge may order the transmission of maps and other original papers to the supreme court for its inspection, and that method of presenting maps ought to be pursued whenever practicable and thus save costs.
(Syllabus by the court.)
APPEAL from the District Court of Canyon County. Hon. Ed. L. Bryan Judge.
Appeal from an order taxing costs. Affirmed.
Order taxing costs affirmed. Costs of this appeal awarded to the respondent.
Stone & MacLane, for Appellant.
("Costs," 11 Cyc. 204, 205; Baldwin v. Boulware, 82 Mo.App. 321; Brown v Winehall, 4 Wash. 98, 29 P. 928; McDonald v. Burke, 3 Idaho 266, 35 Am. St. Rep. 276, 28 P. 440.)
A party cannot be said to be "finally defeated" (Sess. Laws 1899, p. 163, sec. 5) until the action is "finally determined," and the last clause, as applied to an action, has been held to mean "the final settlement of the rights of the parties beyond all appeal." (Dean v. Marshall, 35 N.Y.S. 724; 3 Words and Phrases, 2798; Raft River etc. Co. v. Langford, 6 Idaho 30, 51 P. 1027.)
Independent of the statute there is respectable authority in support of the proposition that stenographer's fees incurred in transcribing shorthand notes for use in preparing a statement on motion for new trial, when authorized by statute to be taxed, are taxable as costs of the trial court at the conclusion of the litigation, and not as costs of appeal. (Linne v. Forrestal, 51 Minn. 249, 53 N.W. 547, 653; Wadleigh v. Duluth St. Ry. Co., 92 Minn. 415, 100 N.W. 104, 362; Pettis v. Green River Asphalt Co., 71 Neb. 513, 99 N.W. 235, 101 N.W. 333.)
There is no authority for the taxation of the item of $ 20 paid for prints of exhibits or maps for use on appeal.
Richards & Haga, for Respondent.
While the power to impose costs must ultimately be found in some statute, the legislature may nevertheless grant the power in general terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed. (11 Cyc. 24, 25; Tesla Elec. Co. v. Scott, 101 F. 524; Jordan v. Agawam Woolen Co., 13 F. Cas. No. 7516; Waite v. Vinson, 18 Mont. 410, 45 P. 552.)
In this state the prevailing party on appeal is entitled to his costs and disbursements, but when a new trial is ordered or a judgment modified, the costs are in the discretion of the supreme court. (Secs. 4900, 4906, 4913, 4912, Rev. Stat.)
The party awarded costs, whether by statute or order of court, is entitled to recover all his necessary disbursements and costs. (Anderson v. Ferguson-Bach Sheep Co., 12 Idaho 418, 86 P. 41; State v. Baird; 13 Idaho 126, 89 P. 298, 301; Sebley v. Nichols, 32 How. Pr. 182.)
When a transcript of the testimony is required for the proper consideration of a case on appeal, the statutory fees of the stenographic reporter for furnishing such transcript are a "necessary disbursement" within the meaning of the statute, and the amount so paid may be taxed as other costs on appeal.
The title of the act of 1899, concerning stenographic reporters, says nothing whatever about the taxation of costs. The act nowhere shows that the legislature intended thereby to amend the various provisions of the Revised Statutes regarding the taxation of costs, and the title of the act is clearly insufficient for such purpose. This act should be construed so as to harmonize with the Revised Statutes.
The cost of procuring prints of the exhibits attached to the transcript on the former appeal were "necessary disbursements" within the meaning of the statutes of this state, and were necessary for use upon the appeal.
This action was before this court at its February term, 1907, on an appeal from the judgment and an order denying a new trial. (13 Idaho 174, 89 P. 296.) The judgment appealed from was for $ 1,750. This court reduced that judgment $ 750, leaving the judgment $ 1,000. When the remittitur was filed in the lower court, the respondent here, who was appellant on the first appeal, filed a memorandum of costs of appeal that included, among other items, one of $ 130 paid the stenographic court reporter for a transcript of the evidence used in preparing his statement on motion for a new trial and on appeal, and an item of $ 20 paid for prints of exhibits of maps for use on appeal. This appellant, who was respondent on the former appeal, moved to tax the costs by striking out those two items and certain others from the cost-bill. The motion was denied as to said two items. This appeal is from the order of the court refusing to strike out those two items.
We will first consider the item of $ 130 paid the court reporter for the transcript of the evidence. Under the provisions of sec. 5 of an act entitled, "An act to provide for the appointment, duties and compensation of stenographic reporters of the district courts," approved February 9, 1899 (Sess. Laws 1899, p. 163), it is made the duty of such reporters to furnish, on the application of the attorney general, district attorney, or any party to a suit in which a stenographic record has been made, a typewritten copy of the record, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of fifteen cents per hundred words, to be paid by the party requesting the same, and to be taxed as costs in the case against the party finally defeated in the action. The act of 1899 was again amended in 1907. (Sess. Laws 1907, p. 542.)
However, the amendment of 1907 does not apply to this case.
It is most earnestly contended that although the respondent won on the former appeal and succeeded in having the judgment reduced nearly one-half, he must, nevertheless, pay the stenographer for a transcript of the evidence that was used in the preparation of the transcript on appeal, because he was finally defeated in the action. He was compelled to take the appeal to protect his rights, and succeeded in reducing the judgment $ 750. It was necessary for him to have a...
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