Ryan v. Maxey

Per Cueiam. — The judgment of the district court in this case in favor of defendant was affirmed by this court on appeal on January 29, 1894 (14 Mont. 81). Upon return of remittitur to the district court defendant, Daniel Maxey, filed his verified memorandum of costs, on appeal to the supreme court. Plaintiff then moved to retax these costs as to one item. This motion was sustained. From that order defendant has appealed to this court. The respondents on this appeal now move to dismiss the same, on the ground that such order is not appealable. They rely upon Rader v. Nottingham, 2 Mont. 157, and Orr v. Haskell, 2 Mont. 350. (See, also, First Nat. Bank v. Neill, 13 Mont. 377.) In these cases it was held that an order taxing or retax-ing costs was not itself appealable, but that the same could be reviewed on an appeal from the judgment. But the costs there considered were the original costs of the case, which went into the judgment of the district court in the case. The costs now in question are not costs which entered into the judgment pronounced by the district court; nor could they in any manner be a part of the original judgment, for the reason that they were incurred after such judgment was rendered, and upon appeal from the same. The original judgment was complete before the appeal was taken, and must have been a judgment before appeal could have been taken therefrom. Therefore, the [101] costs of appeal from the judgment could not have been reviewed on such appeal, for they were not part of the judgment of the district court, and could not have been. There is not now an appeal from the original district court judgment to bring up the costs under consideration, because that appeal has already been heard and determined. Thus the cases above cited are wholly inapplicable. The order retaxing costs of appeal on remittitur filed in the district court is a special order made after final judgment, and iu the nature of things could be nothing else. It is therefore appealable, and the motion to dismiss the appeal is denied. Another point made upon the motion to dismiss raises the consideration of the merits of the appeal, and will not be considered now. Motion denied. All concur.