State v. Pearl , 163 Wash. 268 ( 1931 )

In this, and eighteen other like cases, upon motion of the defendant in each cause upon verdicts of acquittal, judgments were entered discharging the defendants and allowing each a statutory attorney's fee of fifteen dollars. The judgment in each case was that the defendant be discharged, and that he recover of and from the state of Washington judgment for costs, to-wit the statutory fee of fifteen dollars. The state appealed from each of those judgments. Respondents have each moved to dismiss the several appeals.

After the filing of the motions to dismiss, the prosecuting attorney filed in this court a petition for certiorari, praying a review of all nineteen judgments, in so far as each judgment awarded costs to the several respondents for the statutory attorney's fee of fifteen dollars, and alleging that there was no adequate remedy by appeal. To the petition for certiorari, respondents demurred.

Arguments upon the nineteen appeals and upon the petition for a writ of review were all submitted at the same time for decisions.

The motion of respondent to dismiss the appeal in each case is on the ground that the amount in controversy is below the constitutional jurisdictional amount of two hundred dollars. State constitution, Art. IV, § 4.

Counsel for the state argues that a judgment for costs to a defendant in a criminal action is void as being in excess of the jurisdiction of the court, by reason of which an appeal may be taken by the state.

Formerly the state was allowed an appeal in criminal cases only when the error complained of was in setting the indictment or information aside, or in arresting judgment on the ground that the facts stated in the indictment or information did not constitute a crime, or some other material error in law not affecting the acquittal of a prisoner on the merits. Rem. Comp. Stat., § 1716.

Later, the right of the state to appeal in criminal cases was enlarged by the statute of 1925 (Laws of 1925, Ex. Ses., p. 423, § 7, Rem. 1927 Sup., § 2183-1). But in that act it was also provided "that in no case should the state have a right to an appeal where the defendant has been acquitted by a jury."

[1] A litigant may not recover his attorney's fees from the opposite party in the absence of a statute granting that right. No such right existed at the common law. 7 R.C.L. 789.

We need not go outside this jurisdiction for controlling authority upon that question. It is settled law in this state that costs are purely statutory, and can only be awarded when the statute gives them. Eggerth v. Spokane, 91 Wash. 221,157 P. 859, and cases cited.

We find no statutory authority, and none has been cited to us, for allowance of costs to an acquitted defendant. This lack of statutory authority probably indicates error in the judgment or order of the court. State ex rel. Simpson v. Smith, 102 Wash. 574, 173 P. 428.

[2, 3] But, as was also held in that case, we are forced to the conclusion that we are without jurisdiction to grant relief. That applies both to the amount in controversy on appeal, being costs only and below two hundred dollars, and to a writ of review. In the above cited case we said:

"In cases of this sort, a writ of review is only another form of appeal, and a limitation upon the one is equally a limitation upon the other (Citing cases)."

In State v. Murrey, 30 Wash. 383, 70 P. 971, the state attempted to appeal from an order purporting to dismiss a preliminary proceeding in which judgment had been entered against the county in favor of defendants in the sum of $60.80, which comprised witness fees paid by the defendant at the preliminary hearing. The court there recited the grounds upon which the state was allowed an appeal in criminal cases, which were similar to the provisions of § 1716, supra, and held that the order taxing costs in the amount of $60.80 was unappealable. It was there observed that the claim for costs, which, if valid, could only be a debt, was under two hundred dollars.

In State ex rel. Corbin v. Superior Court, 35 Wash. 201,77 P. 33, we held that it was immaterial that a judgment entered by the superior court was void for want of jurisdiction. We there observed:

"As we have construed the constitution, it makes the superior court the court of last resort in all civil actions at law, when the original amount in controversy does not exceed the sum of two hundred dollars. In other words, it matters not whether that court decides that it has jurisdiction when it has not, or whether it erroneously decides some other matter of law, its judgment is final in all causes not within the appellate jurisdiction of this court."

The last case is also authority requiring the denial of a writ of certiorari herein.

The cases of Eisen v. Multnomah County, 31 Ore. 134,49 P. 730, and State v. Amsden, 86 Ore. 55, 166 P. 942, 167 P. 1014, correctly decided that costs were a creature of the statutes, and that defendants in criminal cases had no statutory right in Oregon to recover costs against the county; but there was not involved in either of those cases the right of the state to appeal on the mere question of costs, especially under the constitutional limit of appealable amount which is here involved.People ex rel. Maglori v. Siman, 284 Ill. 28, 119 N.E. 940, andReddin v. Frick, 54 S.D. 277, 233 N.W. 50, cited to the point that even a court of general jurisdiction cannot render a judgment contrary to, or unauthorized by law, seem to be contrary to the trend of our own decisions. At any rate, we would not be disposed to follow those courts to the extent expressed in the opinions therein that it is essential to the validity of a judgment that the court pronouncing it have jurisdiction, not only to hear and determine the general class of cases of which that before it was one, but also the power to render the particular judgment in the particular case, and that every act of the court beyond such power is void. The Illinois case is not in harmony with other decisions of the same court, as is pointed out in the dissenting opinion, and is not in harmony with our own decisions.

[4] The state further contends that the validity of a statute is involved herein, for which reason it has the constitutional right of appeal.

The validity of the statute is not involved, within the meaning of the constitutional inhibition on appeals, where the questions involving the statute are merely as to whether an action is properly brought under the statute, whether a recovery can be had under the statute, or whether there is any statute governing the particular action.Doty v. Krutz, 13 Wash. 169, 43 P. 17.

Under our statutory and constitutional provisions, we are forced to the conclusion that the appeals by the state must be dismissed, and that we are without jurisdiction to grant relief in the certiorari proceeding. Compare State ex rel. Colvin v.Superior Court, 159 Wash. 372, 293 P. 283.

The motions to dismiss the appeals must therefore be granted, and the petition by the state for a writ of review must be denied.

BEALS and BEELER, JJ., concur.