Redfield v. Davis

W'HITINlG, J. This court filed an opinion herein, wherein it sustained the trial court 'which had', in habeas corpus proceedings, granted respondent his liberty. See Redfield v. Davis, 174 N. W. 741. In the judgment entered by this court, costs were not allowed in respondent’s favor. Pie "now seeks to have such judgment modified, so that it will allow him costs. [1, 2] If we 'had power so to do, costs would be taxed in respondent’s favor. He had to go into court to free himself from unlawful "imprisonment. He was then forced to appear in this court and resist appellant’s efforts to get the judgment of the lower court reversed. Where one is compelled to defend a judgment granting him his- .liberty, and is successful in such defense, he certainly should be entitled to costs. But the power of any court to allow costs rests upon express statute; there is no implied or inherent power. 7 R. C. D. 781; 15 C. J. 21-23. Section 2600, Rev. Code 1919, authorizes costs to be taxed “in civil actions and in certiorari, mandamus and prohibition proceedings.’ Habeas corpus is not a civil action. Section 2092, Rev. Code 1919; In re Hammill, 9 S. D. 390, 69 N. W. 577. The modification prayed for is refused.