
    RENO ELECTRICAL WORKS, Inc. v. WARD Et Al.
    No. 2905
    September 5, 1930.
    290 P. 1024.
    
      John F. Kunz, for Appellant:
    
      
      Cooke & Stoddard, for Respondent Ward:
   OPINION

By the Court,

Coleman, J.:

This case is before us upon an appeal by the plaintiff from an order refusing to modify a judgment for costs.

Without detailing the facts, it is the contention of the plaintiff that the item in question is not a legal charge. A copy of the cost bill, containing the item complained of, was served upon the then counsel for the plaintiff and filed with the clerk of the court on the day the judgment in the case was rendered.

No objection was made to any item in the cost bill within three days after the service thereof, as permitted to be done by Stats. 1919, p. 56, c. 41. Sixty days after the rendition of the judgment execution was issued thereupon. For the purpose of preventing its levy the plaintiff, with comakers, executed its note payable to respondent for the full amount of the judgment and costs. Three months and a half after the execution of said note, the plaintiff filed in said court its motion to modify the judgment for costs so as to strike therefrom the item in question.

It appears from the findings of facts and the judgment, rendered by the lower court on August 2, 1929, which is made a part of the record on appeal in this matter, that the court found that the item in question was one incurred by the defendants on a former appeal in this case to this court, as appeared from the remittitur from this court, and accordingly rendered judgment in favor of the defendant therefor. On the same day the then counsel for plaintiff acknowledged receipt of a copy thereof, and waived time and right to file objections thereto.

We need not consider all of the questions discussed upon this appeal, since it seems to us that there are at least two good reasons why the order must be affirmed.

November 19, 1930.

The finding and judgment of the trial court to the effect that the defendant had incurred the item on a former appeal in this case, as shown by the remittitur, and the rendition of judgment therefor, was as solemn and binding as any other portion of the judgment. There was only one way to avoid the force and effect of that judgment, which was to file a motion for a new trial, and to appeal from an order denying the same.

We think, too, that had there been no finding and judgment as there was, and had the item been embraced in the cost bill, the only way to attack it is by objecting thereto, as provided by statute, and, in case of an adverse ruling, to appeal therefrom.

We think the order appealed from should be affirmed.

It is so ordered.

On Petition for Rehearing

Per Curiam:

Rehearing denied.  