Young v. Extension Ditch Co.

SULLIVAN, J.

This action was before this court at its February term, 1907, on an appeal from the judgment and an order denying a new trial. (13 Ida. 174, 89 Pac. 296.) The judgment appealed from was for $1,750. This court reduced that judgment $750, leaving the judgment $1,000. When the remittitur was filed in the lower court, the respondent here, who was appellant on the first appeal, filed a memorandum of costs of appeal that included, among other items, one of $130 paid the stenographic court reporter for a transcript of the evidence used in preparing his statement on motion for a new trial and on appeal, and an item of $20 paid for prints •of exhibits of maps for use on appeal. This appellant, who was respondent on the former appeal, moved to tax the costs by striking out those two items and certain others from the cost-bill. The motion was denied as to said two items. This; appeal is from the order of the court refusing to strike out those two items.

We will first consider the item of $130 paid the court reporter for the transcript of the evidence. Under the provisions-of sec. 5 of an act entitled, “An act to provide for the appointment, duties and compensation of stenographic reporters of the district courts,” approved February 9, 1899-(Sess. Laws 1899, p. 163), it is made the duty of such reporters to furnish, on the application of the attorney general,, district attorney, or any party to a suit in which a stenographic record has been made, a typewritten copy of the-record, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of fifteen cents per hundred words, to be paid by the party requesting the same, and to be taxed as costs in the case against the party finally defeated in the action. The act of 1899 was again amended in 1907. (Sess. Laws 1907, p. 542,)

However, the amendment of 1907 does not apply to this-case.

It is most earnestly contended that although the respondent won on the former appeal and succeeded in having the judgment reduced nearly one-half, he must, nevertheless, pay the-stenographer for a transcript of the evidence that was used in the preparation of the transcript on appeal, because he was finally defeated in the action. He was compelled to take the appeal to protect his rights, and succeeded in reducing the-judgment $750. It was necessary for him to have a transcript of the reporter’s notes in order to prepare his transcript on appeal. As he was successful in that proceeding, at least to a certain extent, he is entitled to recover his costs-on such appeal, and a part of those costs was $130 paid' for a transcript of the reporter’s notes. We think the provision of said see. 5 of the act referred to contemplates-that the cost of the reporter’s notes shall be taxed against: the defeated party in the proceeding in which they are used. To illustrate: If a plaintiff procure judgment for $5,000-against a defendant, and the defendant appeals, and in order to prepare bis transcript on appeal it is necessary for him to procure a copy of the reporter’s notes, and he pays therefor, and on the appeal reduces the judgment to $500, that is a final determination of that action on that appeal, and appellant is entitled to recover of the respondent the amount paid for the reporter’s notes.. The general theory of our law in regard to costs is that the losing party shall pay the costs, and it would be most unjust to compel the winning party on an appeal, especially where there is any considerable change in the judgment appealed from, to pay the costs of the appeal. And we do not think that the legislature intended in this class or kind of costs or fees to compel the successful party on the appeal to pay them. The determination of the appeal is a final determination of the action on appeal, and the costs made thereon are separate and distinct from costs made in the trial court.

We have not overlooked the fact that the payment of costs in certain cases is left discretionary with the judge or court. In the case of Raft River Land & Cattle Co. v. Langford, 6 Ida. 30, 51 Pac. 1027, the right of the prevailing party to recover the amount paid by him for a copy of the evidence from the court reporter was considered. The fees paid for the procuring of a transcript of the evidence from the court reporter to be used on motion for a new trial, in case an appeal is taken, are costs incurred on the appeal and are taxable as such.

In McDonald v. Burke, 3 Ida. 266, 35 Am. St. Rep. 276, 28 Pac. 440, where a question similar to the one under consideration was passed upon and the fees of the stenographer were there disallowed because the services charged for were not rendered by the court stenographer, the party employed a private stenographer and charged as fees such stenographer’s compensation for work done as a private stenographer. We do not think, in the passage of said act, the legislature intended to amend the various provisions of the Revised Statutes regarding taxation of costs; if it did do so, the title of the act is clearly insufficient for that purpose. The provisions of said act in regard to the taxation of costs should be construed harmoniously with the other provisions of the statute.

It is only necessary costs and disbursements that can be recovered either under the statute or rules of the court, and when a plaintiff has recovered a much larger judgment in the trial court than he is entitled to, and the defendant is required to appeal to protect his rights and wins on the appeal, he is entitled to the necessary costs incurred by him on the appeal, although the ease ultimately goes against him.

It is contended by counsel that the item of $20 for the prints of maps for use on appeal should not be allowed. Under Rule 6 of the rules of this court the cost of printing, not to exceed forty pages of brief, must be allowed taxed as costs, and under paragraph 3, Rule 8, the expense of printing the transcript on appeal in civil eases and the pleadings, affidavits or other papers constituting the record in original proceedings in this court, must be allowed as costs. Paragraph 7 of Rule 27 provides that whenever a map forms a part of the transcript, the appellant must furnish six copies thereof, one to be attached to each of the six copies of the transcript filed with the clerk. That provision was complied with in this case by furnishing blue-prints of maps and attaching them to the transcript, and it is a necessary cost on appeal, and we think should be allowed as such, it being considered a part of the printed transcript. Maps introduced in evidence on the trial need not be printed, if the parties will take advantage of the provisions of Rule 19, by getting an order from the trial judge for the transmission of such maps to the supreme court for inspection there, or by- stipulation of counsel that the originals may be used on the appeal. In order to avoid costs, this procedure should be adopted whenever it is practicable. We think the court did not err in allowing the item of $20 for prints of maps.

The order taxing costs must be affirmed and it is so ordered. Costs of this appeal are awarded to the respondent.

Ailshie, C. J., and Stewart, J., concur.