#### STATE ex rel. HURLEY, Relator, *v.*DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.

(No. 1,827.)

(Submitted June 16, 1902.

Decided June 23, 1902.)

*Appeal*— Costs—Necessity *for Formal Judgment*— 1Memoran-*dum of Costs*— Filing—Service *on Adverse Party*— Execu*tion*— Authority *of Trial Court*— Errors *in*Memorandum— *W aiver.*

1. under Supreme Court Rule XVII, providing that in all cases the cost of appeal shall be taxed against the unsuccessful party, no formal entry of judgment for such costs is necessary, but the rule itself disposes of such costs as effectually as though a formal judgment therefor were entered.

2. Code of Civil Procedure, Sec. 1869, provides that if a party to whom an appellate court has awarded costs wishes to claim them, he must, within thirty days after the *remitUtur*is filed with the cleric below, deliver to such cleric a memorandum of his costs, verified as prescribed by Section 1867, and that thereafter he may have an execution therefor as upon a judgment. *Held,*that when a party to whom such costs are awarded has complied with the statute, the cleric must issue execution for his costs whenevér he demands it.

3. Though the statute (Code of Civil Procedure) does not require service of the memorandum on the adverse party, by analogy such service should be made, and disputes settled as provided by Section 1867.

4. Subject to a motion to strike out disputed items, the filing of the memorandum has the same effect as a formal entry of judgment, and the trial court has no further function to perform after execution thereon than it has in case of an execution on a final judgment.

D. where a party to whom the costs of an appeal were awarded erroneously included in the memorandum thereof, filed and served pursuant to Code of Civil Procedure, Sec. 1869, items of costs on the trial below, the adverse party, by failing to make a seasonable motion to strike out such items, and by moving to quash on other grounds the execution issued on such memorandum, waived objection to the erroneous items.

*Certiorari*by tbe state, on tbe relation of Mary Ann Hurley, for tbe annulment of an order entered by E. *W.*Hamey, judge, quashing an execution in relator’s favor for tbe costs of an appeal.

Order annulled.

*Messrs. Sinclair &*Dygeri, for Relator.

*Mr. Thomas A.*Morrin, for Defendants.

*41MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

Application for w|rit of *certiorari.*On appeal to tbis court in a cause entitled *“Hurley*v. *O’Neill”*tbe judgment rendered by the district court in favor of the defendant was reversed, and the cause remanded for a new trial. *(Hurley*v. O’Neill, 26 Mont. 269, 67 Pac. 626.) Within thirty days after the *remit-titur*from this court was filed in the office of the clerk of the district court, and on March 26, 1902, the plaintiff delivered to the clerk her memorandum of costs incurred upon her appeal, and served a copy of the same upon the defendant. The memorandum contained also' certain items of costsi incurred by the plaintiff upon the trial in the district court prior to the appeal. It was properly verified as required by Section 1867 of the Code of Civil Procedure. Thereafter, on April 24th, the plaintiff, for the purpose of enforcing the payment of the amount so claimed, caused an execution to be issued by the clerk, and placed it in the hands of the sheriff of Silver Bow county. Under it the sheriff levied upon certain real property situate in that county, and belonging to the defendant, and was pxo1-ceeding to advertise and sell it. On May 21st the defendant filed in the district court his motion asking for an order recalling and quashing the execution upon the following grounds: (1) That the execution had been issued by the clerk improvidently and without direction of the proper authority; (2) that the execution was unauthorized, and not issued upon any judgment, or by any authority of court; and (3) that the supreme-court had not awarded the costs of the appeal to the plaintiff, and had made no order whatsoever concerning them. This mjotion was heard by the court, E. W. Hamey, judge, presiding, on May 24th, and an order entered sustaining it. The present proceeding has been instituted to annul this order as in excess of jurisdiction.

There has been no appearance in this court by counsel for the defendants. Counsel for relator contends that, having complied with the requirements of the statute and the rules and *42practice of tins court, she is entitled, ■ as a matter of course, to an execution for her costs accrued upon the appeal, and therefore that the district, court had no jurisdiction to recall and quash her execution.

Section 1869 of the Code of Civil Procedure provides: “Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must within thirty days after the *remUliiur*is filed with the cleric below, deliver to such clerk a memorandum of his costs, verified as prescribed by Section 1867, and thereafter he may have an execution therefor as upon a judgment.” Rule XVII of this court, directs that “in all eases the costs of appeal shall be taxed against the unsuccessful party, unless otherwise ordered by this court; and the *remittitur*shall be accompanied by an itemized statement or such costs as are paid to the cleric of this court.” The order of reversal made at the time the opinion in *Hurley*v. *O'Neill*was delivered contained no form'al direction as to the disposition of the costs incurred upon the appeal. The plaintiff, having been successful, however, is entitled under the rule, as a matter of course, to have her costs upon the appeal taxed against, and to recover them from, the defendant. The design of the rule is to adjust the costs on appeal without a"formal order. Its effect is to award the costs, to the successful party, just the same as if a formal order were made in each case. I he items of costs incurred upon appeal neither this court nor its cleric has anything to do with, except such as are paid to the cleric, and these are disposed of when they have been certified in the *remittitur*to the cleric of the district court. These and all other items claimed must he included in the memorandum required by the statute *supra,*and filed with the cleric of the district court. When this has been done, the. successful appellant is entitled to an execution for the amount of the bill, and the cleric must, under the direction of the statute, issue it when demland is made for it.

The statute contains no direction for the service of the memo ■ randum upon the adverse party; nor is there, any provision directing how questions arising” upon disputed items may *43be settled. Since, however, the memorandum must be filed with the clerk of the district court, we think that by analogy service' of it should be made and disputes settled under the provisions of Section 186Y, referred to in Section 1869, *supra-.*If there is no dispute, then the district court has no other function to perform in the matter than it has in case of an execution upon a final judgment. Indeed, under the statute, the filing’ of the memorandum with the clerk, subject to a, motion to strike out disputed items, but without anything further, has the same effect as a formal entry of judgment.

In this case the court evidently proceeded upon the idea that some formal order disposing of the costs, either by this court or by the district court, was necessary to support the execution. This idea is erroneous. The rule of this court, of which that court is bound to take notice, disposes of the cost as effectively as Avould a formal order. This being true, and there being no dispute as to the amount of the bill, its office was not to obstruct the relator, but rather, to aid her in collecting her costs as awarded by the rale of this court.

As already stated, the memorandum, of relator contained some items of costs incurred upon the trial in the court below. This should not have been done, since Section 1869, *supra,*has reference to costs of the appeal only. If seasonable complaint had been made of them, they should have been stricken out. No such complaint was. made, nor Avas the order now complained of based in Avhole or in part upon this mistake of relator. Under the circumstances the defendant in that case must, be deemed to have waived it.

The order complained of cannot be supported upon either one of the grounds assigned in the, motion in the court below. It Avas Avholly an excess of jurisdiction, and must be annulled. It is so ordered.

*Ammlled.*

MR. Justice Pigott : I concur. f

Me. Justice Milburx, not having heard the cause, takes no part in the foregoing opinion.