Kelly v. Oksall
Kelly v. Oksall
Opinion of the Court
This is one of twenty-five cases commenced by the same plaintiff against as many different defendants, in each of which the order of the circuit court sending all the issues to a referee for trial without the consent and against the objection of the defendant was reversed in this court, and the appellant recovered the usual judgment for costs and disburse '
Considered merely as a motion to modify the judgments of this court, respondent’s application cannot be granted. An order to show cause should have been obtained, as motions cannot be otherwise regularly heard except on the motion day of the proper circuit. Moreover, in the absence of any agreement or order of this court, each appellant was compelled, in order to preserve his rights, to take the same steps he would have been compelled to take if his case had been the only one referred by the trial cou^t. It is, indeed, unfortunate that counsel did not agree to let all of these cases abide the result in one of them, and thus avoid the incurring of costs and disbursements to the' amount of about $2,000 in excess of what would have been incurred in one case, but they did not make such an agreement, and it is wholly immaterial who was to blame for the failure, to do so. None having been made, each appellant is clearly entitled to recover his statutory costs. If respondent had prevailed in this court, he would doubtless have in
Whether proper items and amounts of costs and disbursements have been taxed by the clerk .should be raised by an appeal from his taxation. Rev.. Code Civ.. Proc. 1903, §416. However, though no such appeal was taken in these cases this court has inherent power to review the official, acts of its clerk whenever attention is. called to them by .parties interested therein, and it is the duty of the court to correct, errors of the clerk, regardless of the manner ip which they are presented for review. Dalbkermeyer v. Scholtes, 3 S. D. 183, 52 N. W. 871. We. therefore proceed to consider the items allowed by the clerk. As heretofore suggested, the items of statutory cost were properly allowed, but as to the disbursements for printing abstracts and briefs a more difficult question is. presented. Each of the appellants is entitled to the amount actually and necessarily incurred for printing.. As we have stated, an abstract and brief was, in the absence of any agreement or order, necessary in each of these cases. It was proper for the appellants to have an abstract and brief in each case, but no more can be allowed for either than was actually and necessarily incurred for printing the same. A party entitled to disbursements in this court should only be allowed what he actu
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- 1. A motion to modify a judgment of the Supreme Court cannot be regularly heard except on an order to show cause. 2. Plaintiff commenced 25 cases against as many defendants. Each defendant appealed from an order sending the issues to a referee. The Su- ' preme Court reversed the order. Held, that each appellant was entitled to his statutory costs. 3. Though,, under Rev. Code Civ. Proc. 1903, § 416, providing that any person aggrieved by the taxation of costs may appeal therefrom to the court, the question of proper taxation by the clerk of the Supreme Court shoud be raised by an appeal therefrom, yet the Supreme Court will correct errors of the clerk, regardless of the manner in which they are presented for review. 4. A party entitled to disbursements in the Supreme Court for printing an abstract and brief in the case is only entitled to what he actually and necessarily disbursed.