ON PETITION FOR REHEARING.
The respondents are entitled to the costs of this appeal. Section 5582, Rev. Codes 1899, provides: “When an action has been .dismissed from any court for want of jurisdiction or because it has not been regularly transferred from an inferior to a superior court, the costs must be adjudged against the party attempting to institute or bring up the action.” We think this statute was intended to apply to cases such as the one at bar. It was plainly designed to authorize the court to allow costs to the prevailing party where he has been improperly brought into any court, and to vest the court with jurisdiction to the extent of allowing costs, although it has no jurisdiction of the merits. This being the plain intent of the law, it is the duty of the court to so construe the language used as to “effect its object and to promote justice.” Rev. Codes 1899, section 5147. The word “action” was evidently not used in its technical sense, but in this connection means any form of proceeding instituted in court. This construction does not conflict with the Eaton case, 7 N. D. 269, 74 N. W. 870. In that case the appeal was not dismissed for want of jurisdiction, but costs were refused to the -party prevailing on the merits by reason of the “anomalous and wholly unique character of a disbarment proceeding.”
The petition for rehearing is denied.
All concur.