The facts sufficiently appear in the opinion. One Anderson recovered a judgment in the justice's court of Ormsby county for $224.
Upon appeal to the district court by the relator, and a retrial of the cause, the judgment was reduced to $199. Each party filed cost bills, claiming costs in the district court; and each, by motion, asked that the cost bill of the adverse party be stricken out. Upon the hearing of these motions the court ordered that each party pay his own costs in the district court and justice court, and one-half the costs of perfecting the appeal, and one-half of the jury fees in the district court. Pending the motions to strike out, Anderson asked and was granted leave to amend his cost bill by inserting therein the jury fees in the district court, claimed to have been omitted therefrom by inadvertence and mistake. The relator claims, under the facts, that the district court exceeded its jurisdiction in making the order, and brings certiorari to review the same.
Under our statute and numerous decisions of the court, the only question which can be inquired into in this proceeding is whether the district court had the jurisdiction to make *Page 257 the order sought to be annulled, and this question must be determined by the provisions of Section 582 of our civil practice act (Comp. Laws, 3677).
This section reads as follows: "All causes appealed to the district court shall be tried anew in said court, and said court may regulate by rule the practice in such cases in all respects not provided for by statute; provided, that the appellant shall in no case recover from respondent the cost incurred on appeal, unless he recover in the district court a judgment more favorable to himself than the judgment appealed from; but shall, unless he recover in the district court a judgment more favorable to himself than the judgment appealed from, pay the cost of respondent on appeal; * * * and in all other cases respondent shall have judgment against the appellant for the amount of the costs so incurred; provided, that whenever the judge of the appellate court shall be satisfied from the evidence that the appellant had reasonable grounds for his appeal, and that such appeal was taken in good faith for the sole purpose of promoting the ends of justice such judge may then order such costs to be taxed against the respondent or may apportion the costs between the parties in such manner as will be just."
The relator contends that the judgment recovered in the district court was "more favorable" to him than the judgment from which he appealed, and therefore, under the provisions of Section 582, supra, he was entitled to costs as a matter of right, and that the court had no power to apportion the costs, as it did, under the last proviso of the section.
As we view the matter, the words "more favorable," used in the statute, have no precise or exact meaning. The reduction of a judgment on appeal by a certain amount in one case might be "more favorable," within the meaning of the statute; and the reduction of a judgment in another case by the same amount might not be "more favorable," within the meaning of that term. Hence it is uncertain in its meaning, and is to be construed with reference to the facts of the particular case.
It therefore necessarily follows that whether or not a judgment is "more favorable" in the particular case, within the meaning of the statute, is a question to be determined by *Page 258 the tribunal having jurisdiction of the matter.
The statute not having fixed the amount of the enhancement or reduction of the judgment necessary to carry costs, it follows that in each particular case the amount of such enhancement or reduction sufficient to make the judgment more favorable must be left to the sound discretion of the district court. (State v. Second Judicial Dist.Ct., 23 Nev. 243, 45 Pac. 467;Baxter v. Scoland, 2 Wash. T. 86.)
That this power is one subject to abuse does not militate against its existence, or give to this court any authority to correct such abuse.
The relator also contends that Anderson not having claimed the jury fees in his original cost bill, and until after the time in which cost bills are required to be filed, the court exceeded its jurisdiction in permitting the cost bill to be amended so as to include these items.
While it has been decided, and undoubtedly correctly so, that failure to file the cost bill within the time limited by the statute operates as a waiver of costs, we are unable to see why, where a cost bill has been filed within the time limited, and the matter of the allowance of costs still remains in the hands of the court under the motion to retax or strike out, the court should not, under the provisions of Section 68 of our civil practice act (Comp. Laws, 3163), in furtherance of justice, upon a proper showing, allow the amendment. The court still had jurisdiction of the matter at the time the amendment was asked and allowed. (Burnham v. Hays, 58 Am. Dec. 391.)
The proceedings of the district court must therefore be affirmed. *Page 259