State ex rel. Linde v. Equity Co-operative Exchange

Christianson, Ch. J. This is an appeal from an order denying defendants’ motion for taxation of costs. The record shows that the state commenced an action in the district court of Cass county to dissolve the defendant corporation, wind up its affairs, and distribute its assets. On May 24, 1916, the attorneys for the respective parties entered into the following written stipulation: (Title and venue.)- It is hereby stipulated, by and between the parties to the above-entitled action that the same be and it is hereby dismissed. Dated this 24th day of May, a. d. 1916. Henry J. Linde, Atty. for Plaintiff. ’ M. D. Munn, Atty. for Defendants. On August 4, 1916, an order was entered upon the stipulation “that said action be and the samé is hereby dismissed.” On the same day judgment was duly entered, pursuant to said stipulation and order, “that said above-entitled action be and the same is hereby dismissed.” The record does not show upon whose application judgment was entered; but upon the oral argument defendants’ counsel stated that at the time it was signed the stipulation of dismissal was delivered to defendants’ attorney Munn, and that thereafter one of defendants’ attorneys presented it to the district court and obtained the order of dismissal, and caused judgment of dismissal to be entered. It will be noted that no reference was made to costs in the stipulation, the order, or the judgment. A long time after the entry of judgment, defendants moved that certain costs be taxed in their favor. The record does not show whether the matter was ever presented to the clerk of the district court; nor does it show when the motion was made. It does show, however, that the motion was based upon a statement of costs and disbursements verified on November 9, 1917, and that the order denying the motion was made January 20, 1918. As appears from the title, the action was instituted by Henry J. Linde, as attorney general of the state, and the stipulation of dismissal was signed by him. Linde was succeeded by the present attorney general in January, 1917. Honorable Charles A. Pollock was judge [301] of the third judicial district during the entire period of the pendency of the action. He sighed the order of dismissal. In January, 1911, Judge Pollock was succeeded by Judge A. T. Cole, and the motion to tax costs was made before and decided by Judge Cole. It appears from the memorandum opinion filed by Judge Cole, that he was of the opinion that the defendants were, in no event, entitled to tax costs against the state in this action. That is the principal reason given by the trial judge for denying the motion for costs, although he also refers to the long time which had elapsed since the rendition of the judgment. We find it unnecessary to determine in this case whether the principal reason advanced by the trial court was correct or incorrect. The question before this court is not whether the trial court assigned correct reasons for his ruling, but whether the ruling itself was right. If the ruling was right it must be sustained regardless of the reasons assigned. Por “where a judgment or order is correct, it will not be reversed on appeal, because the trial court has based its decision on insufficient or erroneous reasons or grounds, or has stated no reasons therefor.” 4 C. J. 663. See also Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 15 N. W. 904; Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314. The question presented to the trial court was whether, upon the facts shown by the record, the defendants were entitled to recover costs against the plaintiff at the .time the motion was made; not whether they would have been entitled to costs if the action had been prosecuted to final determination, and the defendants had prevailed. And we are satisfied that, under the facts in this case, defendants were not entitled to have judgment for costs against the state, and that the trial court was correct in so holding. Costs are a mere incident to an action. If the cause of action is removed, the action cannot be prosecuted merely to determine the question of costs. Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210, 17 Am. St, Rep. 131, 42 N. W. 232. And in most jurisdictions it is held that, where the cause of action is extinguished by agreement of the parties, no costs are taxable, unless there is an express agreement to that effect. Obert v. Zahn, 45 Okla. 219, 145 Pac. 403; Sheeks v. Sample, 89 Misc. 428, 151 N. Y. Supp. 884; 15 O. J. pp. 89-91, ¶¶ 168, 171. [302] And it has been held that a statute which provides that a judgment dismissing an action, with costs, may be granted when plaintiff voluntarily discontinues the action, has no application where the parties settle the case after the action is brought without making any provisions for payment of costs, and that an award of costs in defendant’s favor on a judgment dismissing the complaint is erroneous. 15 C. J. 90. This action was not prosecuted to final judgment. It was terminated and extinguished by the mutual agreement of the parties evidenced by a written stipulation. Whatever agreement there was between the parties as to costs must be found in or implied from the stipulation. There is no contention and no showing that there was any error or mistake in the stipulation, or that there was any collateral agreement as to costs. The stipulation was silent as to costs. The defendants took the stipulation to the court, and obtained an order for judgment of dismissal. The order made no provision for costs. The defendants procured the entry of judgment, but made no attempt to have costs taxed and entered in and as a part of the final judgment. There is another reason why the order should be affirmed. Our statute contemplates that costs shall be inserted in and become a part of the final judgment at the time the judgment itself is entered. It is provided that costs shall be taxed “as a part of the judgment.” Oomp. Laws 1913, § 7793. In the Encyclopedia of Pleading & Practice (5 Enc. Pl. & Pr. 120), it is said: “The award of costs must be made in the final judgment or decree, and after the case has been disposed of an application to have costs granted will not be entertained.” The right to costs may be waived by failure to claim them. 15 C. J. 106, 107. In this case defendants entered into a written stipulation for a dismissal of the action. They procured an order for judgment. They caused final judgment of dismissal to be entered. In none of these documents did they see fit to make any provision for costs. ' More than fifteen months after the rendition of judgment elapsed before they made any claim for costs. In making the claim they offered no excuse and made no explanation of the failure to make a seasonable application for allowance of costs. The right to costs, if one existed, must be [303] deemed to have been waived. 15 C. J. 106, 107; 5 Standard Enc. Proc. 924. Order affirmed. Hanley and Craweokd, JJ., concur. Bronson and Robinson, JJ., disqualified, did not participate; Honorable W. 0. Crawford, Judge of Tenth Judicial District, and Honorable J. M. Hanley, Judge of Twelfth Judicial District, sitting in their stead. ■ '