Baird v. Shaffer , 109 Kan. 592 ( 1921 )

The opinion of the court was delivered by

Johnston, C. J.:

This is an appeal from a ruling refusing to retax costs and exclusively relating to costs which arose in a case and became a part of a judgment that was entered on April 3, 19.13. An appeal was taken to this court from that judgment August 13, 1915, and it was affirmed here. After-wards an execution was issued upon the judgment and on May 1, 1919, the costs were paid into court. No objection was made as to the costs assessed upon the first appeal nor for more than six years after they were adjudged. In-May, 1919, defendants moved for a retaxation of the costs allowed an expert witness, amounting to $109.58, which amount it appears was still in the hands of the clerk of the court. When the motion to retax the costs was denied, the court directed the clerk to hold the money pending an appeal from the decision which defendants announced they would take.

Aside from the fact that no objection was made to the assessment of costs which constituted a part of the judgment which was affirmed upon appeal; and apart from the fact that six years have elapsed and many terms of court have intervened without complaint as to these costs; and notwithstanding the voluntary payment of the same, all of which afforded grounds for holding that the defendants had waived their right to a retaxation of the costs by reason of lapse of time and their own laches, the present appeal must be disposed of upon another ground. A proceeding to retax costs after the affirmance of the judgment, involves nothing but costs. A ruling relating exclusively to costs is not open to review here although the amount questioned may exceed $100. (Mo. Pac. Rly. Co. v. Yawger, 52 Kan. 691, 35 Pac. 814; Asbell v. Aldrich, 95 Kan. 313, 147 Pac. 1126; Cramer v. Bank, 98 Kan. 641, 158 Pac. 1111.)

The appeal is therefore dismissed.