Whitney et al. v. Teichfuss et al.

Whitney et al. v. Teichfuss et al. 1. An assigned error that the court erred in denying a motion to strike out an amended answer, where the motion to strike out, and the exceptions to the ruling of the court thereon, are not preserved in the bill of exceptions, will not be considered on appeal. 3. It appealing that Chaffee county was by act of the legislature, February 13, 1883, changed from the third class to the second class, held, that the portion of the costs of a suit in that county accruing after February 13, 1883, should be taxed according to the rates fixed by law for counties of the second class. Error to District Court of Chaffee County. This action was one in support of an adverse claim by H. L. Whitney et al., plaintiffs here, who were plaintiffs below, claimants of the Jenny Hess lode mining claim, against W. H. Teichfuss et al., defendants, claimants of the Dutchman lode mining claim. After there had been two trials of the case, and a third trial ordered, the defendants filed an amended answer, in which certain additional allegations were made showing that plaintiffs had failed to do certain assessment work upon the Jenny Hess lode claim, and had forfeited their rights thereto, and thereby were without any right to the premises in controversy. The court denied a motion to strike out this amended answer. The plaintiffs filed their replica-' tion thereto, whereupon the case was tried the third time. Verdict was returned for the defendants. The court denied a motion for a new trial, and gave judgment upon the verdict for defendants. Subsequently plaintiffs moved for a retaxing of the costs, which motion was denied. The case comes here upon writ of error. Messrs. T. M. S. Rhett, H. W. Hobson and M. G. Cage, for plaintiffs in error. [MAJORITY — Stallcup, C. Per Curiam.] Stallcup, C. There is no bill of exceptions of anything occurring prior to said motion to retax costs. The evidence, the motions presented at the trial, and the exceptions to the court’s decisions and orders thereon, are not made part of the record. The errors assigned and argued here are that the court erred in denying the motion to strike out the amended answer, and in denying the motion to retax costs. The motion to strike out the said amended answer, and exceptions to the ruling of the court thereon, not being preserved in a bill of exceptions, form no part of the record proper and cannot be considered here. Sec. 412, Code 1883; Anderson v. Sloan, 1 Colo. 33; Morris v. Angle, 42 Cal. 240; Graham v. Linehan, 1 Idaho, 780; Fox v. West, id. 782; Heacock v. Hosmer, 109 Ill. 245; Kibble v. Butler, 14 Smedes & M. 207; Mining Co. v. Kirtley, 8 Colo. 108. By the act to fix and regulate the fees chargeable by county and other officers, approved February 18, 1881, Chaffee county was of the “ third class,” and so remained until February 13, 1883, when, by an act amendatory thereof, Chaffee county was placed in the “ second class.” It appears by the bill of exceptions, taken upon denying the motion to retax costs, that all the costs in this case were taxed at third-class rates, being much greater in amount than if taxed at second-class rates. The proceeding in question must be treated as taking place before final judgment, and the costs as finally allowed must be regarded as part of the final judgment. Cord v. Southwell, 15 Wis. 211; Howard v. Richards, 2 Nev. 128. For the plaintiff in error it is argued that the costs accruing after February 13, 1883, should have been taxed at second-class rates. We think this' position of counsel is well taken, and that the costs accruing after February 13, 1883, should be taxed according to the rates fixed by law for counties of the second class; and in this regard, and to this extent, the judgment should be modified. De France and Rising, 00., concur. Per Curiam. Por the reasons assigned in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions that the judgment be entered in accordance with the views expressed in said opinion. Modified: