Whitney v. Teichfuss

Stallcup, C. There is no bill of exceptions of anything occurring prior to said motion to retax costs. The [556] evidence, the motions presented at the trial, and the exceptions to the court’s decisions and orders thereon, are not made part of the record. The errors assigned and argued here are that the court erred in denying the motion to strike out the amended answer, and in denying the motion to retax costs. The motion to strike out the said amended answer, and exceptions to the ruling of the court thereon, not being preserved in a bill of exceptions, form no part of the record proper and cannot be considered here. Sec. 412, Code 1883; Anderson v. Sloan, 1 Colo. 33; Morris v. Angle, 42 Cal. 240; Graham v. Linehan, 1 Idaho, 780; Fox v. West, id. 782; Heacock v. Hosmer, 109 Ill. 245; Kibble v. Butler, 14 Smedes & M. 207; Mining Co. v. Kirtley, 8 Colo. 108. By the act to fix and regulate the fees chargeable by county and other officers, approved February 18, 1881, Chaffee county was of the “ third class,” and so remained until February 13, 1883, when, by an act amendatory thereof, Chaffee county was placed in the “ second class.” It appears by the bill of exceptions, taken upon denying the motion to retax costs, that all the costs in this case were taxed at third-class rates, being much greater in amount than if taxed at second-class rates. The proceeding in question must be treated as taking place before final judgment, and the costs as finally allowed must be regarded as part of the final judgment. Cord v. Southwell, 15 Wis. 211; Howard v. Richards, 2 Nev. 128. For the plaintiff in error it is argued that the costs accruing after February 13, 1883, should have been taxed at second-class rates. We think this' position of counsel is well taken, and that the costs accruing after February 13, 1883, should be taxed according to the rates fixed by law for counties of the second class; and in this regard, and to this extent, the judgment should be modified. De France and Rising, 00., concur. [557] Per Curiam. Por the reasons assigned in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions that the judgment be entered in accordance with the views expressed in said opinion. Modified: