§ 25-1708 — Plaintiff's costs; when allowed

Nebraska § 25-1708

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Where it is not otherwise provided
by this and other statutes, costs shall be allowed of course to the plaintiff, except as waived or released in writing
by the plaintiff, upon a voluntary payment to the plaintiff after the action
is filed but before judgment, or upon a judgment in favor of the plaintiff, in actions for the recovery
of money only or
for the recovery of specific real or personal property.

Legislative History

Source: R.S.1867, Code § 620, p. 504; R.S.1913, § 8167; C.S.1922, § 9118; C.S.1929, § 20-1708; R.S.1943, § 25-1708; Laws 2009, LB35, § 11. Cross References: Agreement to pay costs as part of settlement, authorized, see section 25-2240. Annotations: 1. Allowance 2. Disallowance 3. Miscellaneous 1. Allowance Plaintiff, in action for recovery of money only, is ordinarily entitled to costs where he recovers judgment. Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950). In a suit to quiet title in persons claiming adverse possession of specific real property, costs follow the judgment. Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d 404 (1948). Ordinary rule is that the successful party is entitled to judgment for costs. Tobas v. Mutual Building & Loan Assn., 147 Neb. 676, 24 N.W.2d 870 (1946). Where a judgment is obtained for the recovery of specific real property the costs follow the judgment. Tuttle v. Wyman, 146 Neb. 146, 18 N.W.2d 744 (1945). Where plaintiff's action is for a recovery of money only, costs shall be allowed of course to the plaintiff upon a judgment in his favor. Shellenbarger v. Shellenbarger, 137 Neb. 762, 291 N.W. 95 (1940). Where judgment is properly rendered against surety company on official bond a reasonable attorney's fee may be taxed as part of costs. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937). On appeal from justice court by defendant, where no setoff is pleaded, plaintiff is entitled to costs regardless of amount of judgment. Miller v. Henderson, 76 Neb. 383, 107 N.W. 586 (1906). In an equity action seeking declaratory judgment and injunction, the taxation of costs by the trial court to the plaintiff in whose favor judgment was entered was not an abuse of discretion. R & S Investments v. Auto Auctions, 15 Neb. App. 267, 725 N.W.2d 871 (2006). 2. Disallowance Award of costs to plaintiff was not required in equity action to determine lien. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954). Judgment on counterclaim for nominal damages would not carry costs when plaintiff was entitled to judgment in substantial amount. Stewart v. Spade Township, 157 Neb. 93, 58 N.W.2d 841 (1953). This section provides no basis for taxing to a defendant in a civil action the costs of transporting a plaintiff who is an incarcerated person and who must be transported pursuant to section 25-1233. Jacob v. Schlichtman, 16 Neb. App. 783, 753 N.W.2d 361 (2008). 3. Miscellaneous This section does not apply to a discretionary award of reasonable litigation expenses under either 18 U.S.C. 2520 or section 86-297. Brumbaugh v. Bendorf, 306 Neb. 250, 945 N.W.2d 116 (2020). The scope of the exception to this section is limited to a plaintiff's waiver or release of costs in writing. Credit Mgmt. Servs. v. Jefferson, 290 Neb. 664, 861 N.W.2d 432 (2015). This section does not provide for an exception where the defendant voluntarily paid the plaintiff's claim after the action was filed but before a judgment was entered. Credit Mgmt. Servs. v. Jefferson, 290 Neb. 664, 861 N.W.2d 432 (2015). This section does not apply strictly where defendant prevails on a counterclaim; the fact that a defendant may procedurally bring a cause as a counterclaim does not preclude him from recovery of costs when he prevails on such. Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb. 283, 329 N.W.2d 97 (1983). In a suit for both money damages and equitable relief, the trial court was correct in denoting the action one in equity and finding that this section does not apply. Hein v. M&N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980). Section recognizes common law precept. Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969). Costs which have accrued in district court prior to judgment of reversal abide the final determination of the cause. National Masonic Accident Assn. v. Burr, 57 Neb. 437, 77 N.W. 1098 (1899).