Lee Tire & Rubber Co. v. McCarran , 57 Nev. 123 ( 1936 )

OPINION Upon the reversal of the judgment and order appealed from in this case, the respective parties filed a cost bill. In due time each filed with the clerk a motion to strike opponent's cost bill.

The clerk allowed appellants' costs as stated in their cost bill. From this ruling respondent took an appeal to the justices of the court, as provided in rule 6, paragraph 3.

We think the ruling of the clerk was correct. Section 8928 N.C.L. provides that where a judgment is modified, or where a new trial is ordered, and no order is made relative to costs, as in this case, the party obtaining any relief shall have his costs. In this case the judgment was not only modified, but entirely reversed and a new trial was ordered; hence the appellant is entitled to his costs. Gerlach Live Stock Co. v. Laxalt, 53 Nev. 259,266, 298 P. 413, 2 P.2d 123.

Respondent contends that it won on the main question involved in the case, and that it was sent back for an accounting, hence there was no such modification or retrial ordered as is necessary to entitle appellants to costs.

We do not agree with this view. But if it be conceded that an accounting merely is now to be taken, there may be a judgment in favor of appellants upon the taking of such accounting. At any rate, there was a substantial judgment rendered upon the former trial which was wiped out in its entirety by the order of reversal. That being true, appellants are entitled to their costs.

The ruling of the clerk appealed from was right, and is affirmed.