Hidy Bros. v. Hanson

Ladd, C. J. — [10] .1 [9] According to the abstract, notice of appeal was served in the case of Hidy Bros, et al., against Han [10] son only, and yet the arguments proceed on the theory that no- ' tices were served in all the cases. It does not appear that the several actions were consolidated. On the contrary, care seems to have been exercised to keep them separate. That they were heard on the same evidence does not alone warrant the conclusion that they were tried as one action. Consolidation is effected by the order of court or agreement of parties. (Jones v. Witousek, 114 Iowa, 14) and the inference of such an agreement is not warranted by the record. Three of the causes are based on judgments, each of which, including costs, amounted to less than $100, and, without the trial judge’s certificate, jurisdiction to hear on appeal has not been acquired by this court. Colyar v. Pettit, 63 Iowa, 97. The plaintiff in another died long before the action was begun, and, of course, the proceedings were wholly unauthorized. This leaves but the judgment in the case of Hidy Bros, against Hanson in favor of the defendant for costs only, of which the latter appears to have advanced but $20. This is the extent of his interest therein. The fees of others entitled thereto did not belong to him, nor had he any authority to collect the same. In construing sections of the statute similar to 1299 and 3855 of the Code, this court said in McConkey v. Chapman, 58 Iowa, 281: “In our opinion, the plain meaning of the two' sections, taken together, is that the party against whom the judgment is rendered is primarily liable for all costs to the parties entitled thereto; that they may issue their fee bill therefor, and, failing in that, they 'may, by motion, require the successful party to pay such of the costs as accrued at his instance.” And it was further said, in holding that payment to the judgment plaintiff did not release the judgment defendant from liability therefor to parties entitled to fees, that: “The taxation of costs shows the witnesses and officers entitled thereto, and respective amounts due each of them. * * * While it may be said the successful party has judgment for costs, he has no right to collect such as he has not advanced or paid. [11] The judgment for costs which are due jurors, witnesses, and ■officers of court, while it may be said to be included within the judgment in favor, of the successful party, yet it is for the use of the parties entitled to the costs. The successful party has no interst in that part of the judgment.” If, then, Hanson had no interest in the costs taxed against Hidy, save as advanced by him, and was unauthorized to collect any ■other costs, he is not in a situation to demand that Hidy’s property be subjected to the payment of any part of the judgment save the costs by him paid. The issues in that action then involved but $20, and this court, in the absence •of a proper certificate has not jurisdiction. — Dismissed.