
    STATE OF NEVADA ex rel. S. M. and S. E. BURBANK v. J. S. JAMESON, Judge of the Eighth Judicial District.
    Criminal Action — Judgment eor Costs — When Nugatory. — Relators were found guilty of assault and battery, fined in the sum of one hundred dollars each “and the costs of this action: ” Held, that this was only a judgment for the amount of the fine; that the judgment relating to costs, the amount not being stated, was surplusage and nugatory.
    
      Appeal from the District Court of the Eighth Judicial District, Esmeralda County.
    The facts appear in the opinion.
    
      Ellis & King mid D. J. Lewis, for Petitioners.
   By the Court,

Beatty, J.:

The relators were indicted for an assault with deadly weapons; they were convicted of a simple assault, and sentenced by the respondent to pay a fine of one hundred dollars each and the costs of the proceedings. They now ask that the judgment be quashed upon the ground that the district court had no jurisdiction to add the costs of the criminal action to the fine.

We do not think that the addition of the costs would have been an excess of jurisdiction (St. 1867, 44; O. L. S. 3228) but it is unnecessary to discuss or decide the questions that have been argued by counsel, as we are of the opinion that so much of the judgment as relates to costs is utterly nugatory by reason of the failure of the court to state the amount of the costs in entering the judgment. The return to the writ shows that the judgment was entered as follows: “ * * It is therefore ordered, adjudged, and decreed by the court, that the said defendants, S. M. Burbank and S. E. Burbank, be and they are hereby fined in the sum of one hundred dollars each and the costs of this action.” This is a judgment for one hundred dollars against each of the defendants, and for no more. The amount of the costs not being stated, the words “ and the costs of this action,” are mere surplusage. No execution could issue for the costs and the defendants were not ordered to be imprisoned till they were paid.

There was no excess of jurisdiction, and it is therefore ordered that the proceeding be dismissed.  