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McLeod v. District Court

December 31, 1916

P. D. MCLEOD, RELATOR, V. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, AND MARK R. AVERILL, JUDGE THEREOF, RESPONDENTS.


P. M. Bowler and William Forman, for Relator.

J. K. Chambers, for Respondents.

By the Court, McCarran, J.:

This is a proceeding in certiorari. The petitioner was plaintiff in an action commenced in the justice court of Tonopah township against E. E. Bertram for the sum of $90, balance alleged to be due for services rendered. Judgment in the justice court was rendered in favor of the defendant, Bertram, and from that judgment petitioner appealed to the district court of the Fifth judicial district of the State of Nevada. In a trial held in that court before a jury verdict was rendered in favor of the plaintiff, petitioner herein, for the amount claimed. On

[39 Nev. 337, Page 343]

motion of the defendant, Bertram, the verdict of the jury was set aside, and a new trial was granted by the district court. The case being set down for trial on the 27th day of September, 1915, the following proceedings, as set forth in the minutes of the court, took place: “P. D. McLeod, Plaintiff, v. E. E. Bertram, Defendant.

“The above-entitled case comes on for trial at this time before the court.

“William Forman appears as attorney for plaintiff, and J. K. Chambers appears as attorney for defendant.

“The defendant confesses judgment for $90.

“It is ordered, upon motion of counsel for plaintiff, that judgment for $90 and costs be entered in favor of the plaintiff against the defendant, reserving, however, to the defendant the right to proceed as to matter of costs.”

Pursuant to the foregoing proceedings, the court entered judgment in the form following:

“This cause coming on regularly for trial on the 27th day of September, 1915, William Forman appearing as counsel for plaintiff, and J. K. Chambers for the defendant, a trial by jury having been expressly waived by counsel for the respective parties, and the defendant, by his attorney in open court, consented that judgment be entered against the defendant for the sum of ninety ($90) dollars and costs, and the plaintiff in open court accepting said offer.

“Wherefore, by reason of the law, it is ordered, adjudged, and decreed that the plaintiff, P. D. McLeod, do have and recover of the defendant, E. E. Bertram, the sum of ninety ($90) dollars, together with plaintiff's costs and disbursements incurred in this action, amounting to the sum of ____ ($____) dollars.

“Judgment rendered this 27th day of September, 1915. “Mark R. Averill, District Judge.”

On the date of the rendition of this judgment, and after the entry thereof in the form above set forth, plaintiff, petitioner herein, filed and served his cost bill, claiming costs in the sum of $121.70. Three days thereafter, to wit, on the 30th day of September, 1915, the

[39 Nev. 337, Page 344]

attorney for the defendant served upon the attorney for the plaintiff an instrument without entitlement, setting forth the following:

“Now comes the defendant in the above-entitled action and objects to the memorandum of costs filed in said cause, on the ground that the plaintiff is not entitled to any statutory costs, for the reason that the statute makes no provision for costs under the contingencies of this case; that the costs in the case do not follow the judgment, and the plaintiff is only entitled to such costs as may be allowed by the court, and that the costs in this case are entirely under the control of the court, and that he can in his discretion refuse to allow any costs whatever, for the reason that the same is in the district court on appeal from the justice court of Tonopah township, and the statute allows only such costs as are approved and allowed by the court.”

While the instrument quoted above was served on attorneys for petitioner on the 30th day of September, the same was not filed with the clerk of the district court until October 2, 1915. On the last-named date, the parties being present in court by their respective attorneys, a motion was made in open court by plaintiff, petitioner herein, to strike from the records the paper so filed, contents of which we quoted above, for the reason that no motion and notice of motion to retax costs had been filed and served in the case, and that the paper purporting to make objections to the cost bill filed by the plaintiff was no such document as could give the court jurisdiction. The motion thus made was overruled by the court. The matter of the allowance of costs and the allowance by the court of the several items set forth in petitioner's cost bill were argued and submitted to the court. On October 4, 1915, the court, having taken the matter under advisement, ordered that all the items contained in plaintiff's (petitioner's) cost bill be stricken out, excepting one of $17.25, being the clerk's fees.

1. The scope of the inquiry permissible to this court is limited to that of jurisdiction. ...


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