State v. Rogers

1. JUSTICE of peace : successor in office: re-taxation of costs. Tbe appellant, Eush, instituted a proceeding against Eogers to compel bim to give security to keep tbe peace, under tbe provisions of chapter 4, title 25 of. tbe Code. "Where a defendant is discharged upon ... . x preliminary examination, or upon trial before a justice of tbe peace, and tbe costs are taxed against tbe complainant, an appeal to the District Court is specifically provided for. See § § 4254, 4691 of tbe Code. Section 4118 *648of the Code, which provides for the taxation of costs against the complainant, in a proceeding for security to keep the peace, makes no provision for an appeal. We need not determine whether any appeal lies from an order taxing the costs to .the complainant in such a case. Nor are we now called upon to determine whether the justice of the peace, Greever, erred in refusing to dismiss the case at the suggestion of the appellant and in taxing against him the costs subsequently made. No appeal was taken from this action of the justice.

It appears from the record that more than three years after the judgment for costs was rendered, the appellant moved Philip Dowse, the successor of Greever, for a re-taxation of costs. It was from the judgment of Dowse, refusing to re-tax the costs, that Rush appealed to the District Court, and it is from the judgment of the Distsict Court affirming the judgment of Dowse, that Rush now appeals to this court. Whatever might have been the rights, of Rush, if he had prosecuted a timely appeal from the judgment of Greever, we are clearly of opinion that he has now no standing in court; there is no provision of law, by which Rush was authorized, more than three years after the rendition of the judgment by Greever, to bring it up for review before Dowse, his successor in office. Dowse acquired no jurisdiction in the premises, and hence, properly refused to make an order for the re-taxation of costs. The judgment of the District Court affirming the judgment of the justice of the peace is right, and is

Aeeirmed.