Canepa v. Durham , 62 Nev. 417 ( 1944 )

OPINION Subsequent to the rendition of an opinion by this court in the above-entitled case and on December 8, 1944, appellants filed with the clerk of this court a cost bill. On December 15, 1944, respondents filed objections thereto. On December 19, 1944, the clerk of this court overruled the objections made by respondents and taxed costs in favor of appellants in the sum claimed. Respondents have appealed from the ruling of the clerk.

Two grounds are urged in support of this appeal: (1) That this court did not award costs to appellants; (2) that rule VI of the rules of this court, subdivision 2, was not complied with.

1. In support of respondent's contention that at the time of rendering our opinion we did not award costs, it is argued that section 9385.80, vol. 2, 1931-1941 Supplement, Nevada Compiled Laws, had so modified section 8928, vol. 4, N.C.L., that unless there is a specific award of costs made in the decision, costs cannot be collected. We do not think that the enactment of section 8385.80 in any way changed the effect of section 8928 and the construction which has been placed thereon by this court. The two sections are separate and distinct and deal with different subjects, the one with the allowance of costs, the other with the manner of collecting them.

2. This court has repeatedly held that where affirmative relief is given, even though no specific award of costs be made in the opinion, the party receiving such affirmative relief is entitled thereto. Dixon v. Southern Pacific Co., 42 Nev. 73, 90,172 P. 368, 177 P. 14, 179 P. 382; Richards v. Vermilyea, 42 Nev. 294,300, 175 P. 188, 180 P. 121; Page v. Walser, 47 Nev. 386, at page 394, 223 P. 1079; Sorge v. Sierra Auto Supply Co., 48 Nev. 60,227 P. 320; Lee Tire Rubber Co. v. McCarran et al., 57 Nev. 123,59 P.2d 649; Golden v. McKim, 45 Nev. 350, 204 P. 602; Siebert v. Smith, 49 Nev. 312, 244 P. 1012, 246 P. 1; Gerlach Livestock Co. v. Laxalt, 53 Nev. 259, 267, 298 P. 413,2 P.2d 123.

The rendition of an opinion by this court granting affirmative relief to a party carries with it an award of costs, and that award is just as definite and certain as it would be had the opinion contained a statement to that effect. In this case the opinion of this court gave appellants affirmative relief; by so doing, this court awarded costs to appellants.

3. In support of the second ground of objection, respondents assert that the affidavit attached to the memorandum of costs and disbursements is insufficient. The affidavit reads as follows: "T.L. Withers, being duly sworn, deposes and says: That he is one of the attorneys for the Appellants in the above entitled action, and as such is better informed relative to the above costs and disbursements than the said Appellants; that the items in the above memorandum contained are correct, to the best of this deponent's knowledge and belief, and that the said disbursements have been necessarily incurred and paid in said action."

The affidavit is almost identical with that held sufficient in the case of Sorge v. Sierra Auto Supply Co., 48 Nev. 60,227 P. 320, which reads: "Walter M. Nold, being first duly sworn, deposes and says, that he is one of the attorneys, being associated with the firm of Price Hawkins, attorneys for appellant in the above entitled action, and as such, is well informed as to the above costs and disbursements; that the items in the above memorandum contained are correct, to the best of this deponent's knowledge and belief, and that said disbursements have been necessarily incurred in said action."

Also the affidavit held sufficient in the case of Siebert v. Smith, 49 Nev. 312, 244 P. 1012, 246 P. 1, which reads: "John D. Hoyt being duly sworn deposes and says: That he is attorney for the appellant in the above entitled action, and as such is better informed relative to the above costs and disbursements than the said appellant; that the items in the above memorandum contained are correct, to the best of this deponent's knowledge and belief and that the said disbursements have been necessarily incurred in said action."

The ruling of the clerk is sustained.

ON FURTHER PETITION FOR REHEARING February 19, 1945. 155 P.2d 1009.