Barrick v. Porter , 56 Mont. 247 ( 1919 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of tbe court.

Tbis cause is before tbis court upon an appeal from a decree in favor of plaintiff. Tbe controversy tried and determined in tbe district court arose over tbe right to tbe use of 530 inches of tbe water flowing in Judith River, in Fergus county, acquired by an appropriation thereof by a predecessor of the plaintiff on August 1, 1881, for tbe purpose of irrigating certain farming lands described in tbe complaint.

Upon application of tbe plaintiff, when the complaint was filed, tbe court issued an order requiring tbe defendant to show cause why be should not be restrained, pending tbe action, from interfering with plaintiff’s use of tbe water. The defendant was also restrained from interfering with plaintiff’s use pending a bearing under tbe order. Tbe bearing was bad on August 15, 1916. From an entry in the minutes of tbe court, made at tbe conclusion of the bearing, it appears that tbe question submitted for determination was whether tbe restraining order should not be made permanent; in other words, whether upon tbe evidence submitted tbe plaintiff was entitled to tbe relief demanded in bis complaint. Tbe determination of tbe controversy was taken under advisement by the court, and so held until September 8, 1916, when the court made its formal findings and conclusions of law, and rendered a final decree in favor of tbe plaintiff. Tbe defendant never made appearance in tbe action by answer, demurrer or otherwise than by taking part in the beai’ing on tbe order to show cause. On September 5, 1916, while tbe matter was under advisement, tbe clerk, at tbe request of counsel for plaintiff, entered tbe defendant’s default. Tbe findings were made and the decree entered thereon as upon default. The decree adjudged the defendant to pay the costs of the action, amounting to $82.90.

The record discloses that the plaintiff never filed with the clerk, nor served upon the defendant, a cost bill. ■ The only contention made in this court is that the court erred in adjudging defendant to pay costs, and that the defendant is entitled to have the decree modified in this regard. This contention must be sustained.

After appearance in an action the defendant, or his attorney, [1] if he has appeared by an attorney, is entitled to notice of all subsequent proceedings of which notice is required. (Rev. Codes, secs. 7149, 7150.) In the absence of a general appearance, he is not entitled to such notice. Whether the defendant made such an appearance in the case, by taking part in the hearing of the order to show cause and at the close thereof submitting the case for final determination on the merits, so as to prevent the entry of default and to entitle him to notice of subsequent proceedings, need not now be determined. In the [2] absence of a compliance by the plaintiff with the requirements of section 7170 of the Revised Codes, he was not entitled to recover his costs. (Orr v. Haskell, 2 Mont. 350; Butte Northern Copper Co. v. Radmilovich, 39 Mont. 157, 101 Pac. 1078.) Section 7169 points out particularly what costs the successful party is entitled to recover. Section 7170 declares: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the court or referee, * * * a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.” The plaintiff, therefore, was not entitled to recover his costs, under the express provision of this section, without presenting his claim for them in a verified bill, whether the defendant was entitled to service or not.

The cause is^remanded to the district court, with directions to modify the decree by striking out the item of costs. As thus modified, the decree will stand affirmed.

Modified and affirmed.

Associate Justices Holloway, Hurly, Patten and Cooper concur.