Thorvaldson-Johnson Co. v. Cochran

Christianson, J. Tlie sole question involved on this appeal relates to tbe amount that may be taxed as costs and disbursements to tbe prevailing party for tbe amount expended in payment of premium- to a corporate surety on a bond on an appeal from a justice of tbe peace to tbe district court. Tbe facts are as follows: In July, 1933, tbe plaintiff obtained judgment against tbe defendant by default in a justice’s court. Tbe defendant appealed to tbe district court on questions of law alone. ITe furnished tbe statutory undertaking for costs in tbe sum of $100.00 executed by a surety company. Tbe defendant prevailed in tbe district court. Tbe judgment was set aside and tbe defendant was awarded costs and disbursements on appeal. There were taxed in favor of tbe defendant costs and disbursements wbicb included an item of $10.00 for tbe premium paid to the surety company on tbe appeal bond. Tbe plaintiff objected, among others, to this item. Tbe taxation of costs was reviewed before tbe district court and tbe item of $10.00 was allowed. Tbe plaintiff has appealed and contends that in any event tbe defendant was not *369 entitled to have taxed more than $5.00 for the premium on the appeal bond. In our opinion the appellant is correct in his contention. It is elementary that costs are creatures of statute. Costs and disbursements can be awarded only in the circumstances and in the amounts prescribed by the statute. Butler Bros. v. Schmidt, 32 N. D. 360, 155 N. W. 1092; 15 C. J. pp. 21 et seq. Our statute granting permission to utilize a corporate surety on an undertaking on appeal and in other judicial proceedings reads as follows: “. . . In all actions and proceedings a party entitled to recover disbursements therein shall be allowed, and may tax and recover such sum paid such corporation for executing any bond, recognizance or undertaking therein, not less Hum jive dollars, nor more than one per cent per year or fraction thereof, on the amount of the penalty or liability in such bond, recognizance or undertaking specified, while the same has been in force.” N. D. Comp. Laws, 1913, § 4-906. • The bond in controversy here was in force for a period of less than one year. By the express language of the statute the amount that may be taxed as disbursements for the premium on the bond here is $5.00 and no more. Accordingly, the judgment appealed from must be modified so as to reduce the amount taxed for premium on surety bond to $5.00. It is so ordered. Burr, Ch. J., and Moellring, Nuessle and Burke, JJ., concur.