Cronan v. District Court of the First Judicial District

98 P. 614, 15 Idaho 462, 1908 Ida. LEXIS 118

• Court: Idaho Supreme Court
• Decided: November 25, 1908
• Status: Published

Opinions

SULLIVAN, J.

This is a motion to tax costs. This was an original proceeding in this court for a writ of prohibition. After the case was decided, the plaintiff filed his memorandum of costs and disbursements, as follows:

Printing record in proceeding. 175 pages at 75 cents per page ...................$131.25

Fees clerk district court certifying record.. 10.00

Fees clerk supreme court.................. 31.30

Briefs, 40 pages, at 75 cents per page...... 30.00

Paid to C. A. Libby, court reporter, for transcript of testimony of Ezra R. Whitla on motion to vacate order appointing receiver .................... 14.00

Total...................$216.55

The petition for the writ contained about 175 pages of typewritten matter and was charged for in said memorandum of costs at the rate of 75 cents per page, the compensation allowed by the rules of this court for printed transcripts. It is the duty of the plaintiff in an original proceeding in this court to present his complaint or petition in a proper and legible form, and the rule providing for the printing of transcripts does not apply to original proceedings brought in this court. Therefore, the item of the cost bill for $131.25 must be stricken therefrom and not allowed.

The second item of the cost bill is for fees paid the clerk, cf the district court for certifying the record, $10. This should not be allowed for the reason that in such proceedings as the one at bar, the party presenting them may make a copy of any record or paper and attach it and make it a part of such pleading without having the certificate of the piroper officer thereto, and if the defendant thereafter denies that such a paper is a true copy, then the certificate of the proper officer may be presented. That item must not be allowed.

The third item is for $31.30, fees paid clerk of the supreme court. That item is not contested and is a proper item to be allowed.

The next item is for $30 for printing a 40-page brief. It has been the custom of this court to receive typewritten briefs in all original proceedings. That being true, this was not a necessary item of cost and disbursement, as this court would have received a typewritten brief in the place of the printed one, and the printing of the brief was not necessary and said item will not be allowed.

The next item is $14 paid to the court reporter for the transcript of the testimony of a witness who testified on the hearing of the motion to vacate the order appointing the receiver. That was not a necessary disbursement and is not allowed. The plaintiff in this proceeding could have alleged what the testimony of the witness was, and it was not necessary to procure a transcript of the reporter’s notes for that purpose.

At common law costs were not recoverable eo nomine. Costs can therefore be recovered only in eases where there is statutory authority therefor. The power to impose costs must then be found in some statute or some rule of court in which the legislature had given the power in general terms to the court to make rules and orders in regard thereto. (11 Cye. 24.) The cost items above disallowed are not provided for by statute or rule of court, hence cannot be recovered.

The conclusion we therefore reach is that the item of $31.30 must be allowed and taxed as costs, and all of the other items of said cost bill are disallowed.

Costs of this proceeding awarded to defendant.

Ailshie, C. J., concurs.