McLean v. Jephson

By section .3333 of the Code an? action is defined to be “an ordinary prosecution in a court of j ustice by a party against another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense,” and by section 3334 of the Code it is provided “that- every other prosecution by a party for either of the purposes specified in the last section is a special preeeeding. ” By section 416 it is provided that the civil action is commenced by the service of a summons. This proceeding, not having been commenced by the service of a summons, is not an action. It is, however, a prosecution in a court of justice by a party .against another party for the enforcement of a right, and is a special proceeding within section 3334 of the Code above cited. Section 3240 provides that ■costs in a special proceeding may be awarded at the rate allowed for similar services in an action brought in the supreme court. The court of appeals in this case having awarded to the successful party costs in all courts, it would appear that he is entitled to costs at the rate allowed for similar services in an action. The provisions by which the court has power to award motion costs ■do not apply. Such costs are allowed under subdivision 3 of section 3251, which provides that upon any motion specified in section 3236 a sum to be ■fixed by the judge or court, not exceeding $10, besides necessary disbursements for printing and referee’s fees, may be awarded. Section 3236 refers to costs upon a motion in an action. In this case there was no action, but a special proceeding. The order that was appealed from, and which was reversed, was a final order, requiring the defendant to pay a sum of money. It is true that the order committed the defendant as for a contempt j,n case he refused *836to pay, but the proceeding was not a motion in an action to punish for a contempt committed by refusal to obey an order in the action. I think, therefore, that the taxation of the clerk must be set aside, and the clerk directed to tax the costs as in an action. The clerk was right in refusing to tax as a disbursement the fees of the chamberlain on deposit of the sum as security to stay proceedings on appeal. That was not a disbursement in the proceeding. Motion granted as indicated, with $10 costs of this motion.