Gerlach Live Stock Co. v. Laxalt

ON COSTS July 31, 1931. *Page 267 The ruling of the clerk is based upon error because the court did make an order as to costs, as in its opinion it said that if the respondents consents to the striking of $1,800 from the judgment of the lower court, the judgment will be affirmed, but on failure so to do the judgment will "be reversed in all things with costs." The only mention of costs in the opinion in this case is the sentence which covers the alternative proposition that upon failure of respondent to accept the modified judgment that the judgment be reversed in all things with costs. I take it that in the absence of an express order denying a party costs when any relief is obtained, that the judgment by force and effect of the statute itself carries costs. N.C.L., sec. 8928; Sorge v. Sierra Auto Supply Co., 48 Nev. 60, 227 P. 320; Richards v. Vermilyea,42 Nev. 300; Dixon v. Southern Pacific Co., 42 Nev. 90, 91,180 P. 1921.

OPINION This matter is now on appeal from the ruling of the clerk allowing costs to appellant as demanded in his cost bill. In our opinion on rehearing finally disposing of this case it was ordered that the judgment appealed from be reversed with directions to the trial court to allow plaintiffs to amend their complaint so as to plead special damages, unless the plaintiff filed with the clerk of the court below, within ten days after receipt of a copy of the opinion, a written statement to the effect that the lower court modify the judgment so that it may be in favor of the plaintiffs in the sum of $1,000 exemplary damages. 53 Nev. 259, 298 P. 413.

Thereafter the plaintiffs filed with the clerk of the lower court within the time specified a written statement that the judgment might be modified so as to be in their favor in the sum of $1,000.

1. It is provided by statute that where a judgment *Page 268 is modified and no order is made in the judgment relative to costs, the party obtaining any relief shall have his costs. (N.C.L. sec. 8928.)

In Dixon v. Southern Pacific Co., 42 Nev. 90, 91, in disposing of a similar state of facts, we said:

"In the opinion on rehearing the court made no order as to costs; consequently, since appellant obtained relief, it necessarily follows that it should recover its costs. This is not open to debate. The statute is clear, emphatic, and peremptory to the effect that `the party obtaining any relief shall have his costs.' The judgment against the appellant was ordered reversed, unless respondent agreed to a reduction from $2,121.70 to $287.28. Certainly it cannot be said that appellant did not obtain relief."

2. In the instant case the respondents consented to a reduction of the judgment in the sum of $1,800. The appellant certainly obtained relief.

The Dixon-Southern Pacific opinion has been followed consistently in several cases. In Page v. Walser, 47 Nev., on p. 394, 223 P. 1079, speaking through SANDERS, J., we said:

"We are of the opinion now, as we were then, that the modification of the judgment without an order carries costs."

See, also, Sorge v. Sierra Auto Supply Co., 48 Nev. 60,227 P. 320; Richards v. Vermilyea, 42 Nev., on p. 300.

It is also said that the amount of the costs obtained is excessive. The clerk figured up this item, and we do not find any error therein.

We think the ruling of the clerk in allowing appellant's costs as claimed is correct, and it is therefore ratified and affirmed.