Patten v. Ramsey

HAYES, J. Under the rules of this court, the only question presente.d for review by plaintiff in error’s brief is that the triál court committed error in taxing all the costs against plaintiff in-error, plaintiff below. This case was originally comm.enc.ed in the district court of Kay county by petition of plaintiff, declaring upon a cause of action against defendant for maintaining a nuisance, to the injury of plaintiff’s property, personal health, and comfort, and praying for an injunction to abate said nuisance. After answer was filed by defendant, two interlocutory orders were made by.the court upon application of plaintiff. Each of said interlocutory orders adjudged that the costs should be taxed to plain *167 tiff. No exception, in so far as the record now before us discloses, was ever taken to either of these orders by plaintiff, and no appeal was taken therefrom, and the time for such appeals had expired before this proceeding was instituted in this court to review the final judgment in the action; nor has it been attempted to assign either of said interlocutory' orders, or any part thereof, as error in this proceeding. Upon final hearing, the court found for the defendant, dismissed plaintiff’s petition, and adjudged that plaintiff pay all the cost's of the action. In actions for the recovery of money, or for the recovery •of specific real or personal property, upon a judgment in,favor of plaintiff, plaintiff shall be allowed his costs as a matter of course, where it-is not otherwise provided by the statute. Section 6115, Comp. Laws 1909. And where the defendant prevails in such actions, he is allowed, of course, his co.sts. Section 6116,, Id. Section 6117, Comp. Laws 1909, provides: “In other actions the court may award and tax costs and apportion the same between parties upon the same or adverse side, as in its discretion it may think right and equitable.” Under this section of the statute, the taxing of costs in a proceeding for injunction is in the sound legal discretion of the court, and his decree in that regard will only be reversed when it is shown that such discretion has been .abused. Walker v. Walker, 17 Okla. 467, 88 Pac. 1127; McGillvray v. Moser, 43 Kan. 219, 23 Pac. 96; Waterman et al. v. Alden et al., 144 Ill. 90, 32 N. E. 972; 11 Cyc. 36. Defendant, in whose favor all the costs were taxed, prevailed by the final judgment in the lower court. The interlocutory orders made were favorable to plaintiff, but the costs thereof were disposed of by the provisions of said orders, which were never appealed from nor exceptions taken thereto. The facts in this record fail to show any abuse of discretion by the trial court. On the other hand, following the judgment in favor of defendant, we think the costs were properly taxed against plaintiff. The judgment of the trial court is affirmed. All the. Justices concur.