Sorenson v. Donahoe , 12 S.D. 204 ( 1899 )

Haney, J.

In this appeal from the clerk’s taxation of costs, appellant objects to any costs or disbursements being allowed respondent, for the reason that the judgment below was modified, and he specially objects to these items: (1) Making and serving case, $7; (2) stenographer’s fees to perfect appeal record and resisting appellant’s motion, $10; and (3) printing additional abstract, $7.

The general objection is untenable. Where judgment has been rendered against a party for costs, and he claims none should have been awarded, his remedy is by a motion to have the judgment itself modified, and not by an appeal from the taxation of costs. In re Kirby, 10 S. D., 414, 73 N. W., 907. And the judgment of this court should not be modified. When a judgment is affirmed in part and reversed in part, the costs are in the discretion of the court. Comp. Laws § 5193. Such discretion was properly exercised. The judgment of the court below was modified in only a slight degree, no substantial right being affected thereby, 11 S. D. 603; 79 N. W., 998.

Nothing should be allowed for “making and serving case,"’ for the reason that none was made or served, and none was necessary; the action of the county court having been based upon affidavits.

The second contested item is indefinite. It seems to embrace two distinct matters; one relating to the court below, the other to proceedings in this court. The stenographer could not have been properly employed to perfect the appeal record, because it consists of affidavits and orders, and no bill of exceptions or statement of the case was required. If it relates to the preparation of affidavits in this court, we are aware of no law under which the item can be allowed.

We think the additional abstract was necessary, to properly present the questions involved, and that the item should be allowed. The clerk is therefore directed to deduct $17 from the amount taxed in favor of respondent, and in all other respects the taxation is affirmed.