DocketNumber: No. 7,544.
Citation Numbers: 61 P.2d 836, 103 Mont. 145
Judges: MR. JUSTICE STEWART delivered the opinion of the court.
Filed Date: 10/21/1936
Status: Precedential
Modified Date: 1/12/2023
This is a motion to strike from the files of this court a memorandum of costs.
On March 4, 1936, Thelma W. Clark, as relatrix, filed a petition for a writ of supervisory control against the district court of Silver Bow county and the Honorable Frank L. Riley, a Judge thereof. After a hearing on the matter, this court on April 21 rendered and filed an opinion wherein it ordered that a peremptory writ should issue. (State ex rel. Clark v. DistrictCourt,
One of the principal grounds urged by respondents is that the memorandum was not filed within the time provided by law. Section 9796, Revised Codes, provides that in special proceedings instituted in this court "the same costs must be allowed as in cases on appeal." Section 9805, Id., provides that, "whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs." Section 9796 makes no particular mention as to the time within which a memorandum of costs must be filed. Since this was a special proceeding, no remittitur was issued or filed. Relatrix however, apparently rests upon the assumption that in such cases the 30-day limit as prescribed by section 9805 is applicable, and that the time must be computed from the date of the issuance of the writ, *Page 147 just as it is computed from the date when the remittitur is issued in an ordinary case on appeal.
Respondents contend that the time for filing a memorandum of costs began to run on May 26, the date on which the decision of this court denying the petition for rehearing was entered, and that therefore, even though relatrix was entitled to the 30-day time as prescribed by section 9805, still the memorandum was not filed in time.
As we view the matter, it is unnecessary to decide the question thus presented, because section 9803, rather than[1, 2] section 9805, is the applicable and controlling statute. Section 9803 provides that "the party in whose favor judgment is rendered and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the court or referee, * * * a memorandum of the items of his costs and necessary disbursements in the action or proceeding." In State ex rel. Riddell v.District Court,
Upon failure to file and serve cost bills within the time provided by law, a motion to strike out the memorandum should *Page 148
be sustained. (Reins v. King,
Accordingly, the motion to strike the memorandum of costs must be, and it is hereby granted.
ASSOCIATE JUSTICES MATTHEWS, ANDERSON and MORRIS concur.
MR. CHIEF JUSTICE SANDS, absent on account of illness, takes no part in the above decision.