NE Code § 25-1711 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-1711 - Award and taxation of costs; power of court to exercise discretion; frivolous appeals in jury cases; actual fees and expenses.

25-1711.  Award and taxation of costs; power of court to exercise discretion; frivolous appeals in jury cases; actual fees and expenses.In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable. In all cases of appeals from an inferior court or when an original filing made in the district court is within the jurisdictional limits of an inferior court, and a jury is demanded, the court may in its discretion tax as costs the actual fees and expenses necessitated by such jury if the court finds that the appeal was taken or the original filing was made for a frivolous or capricious reason, and such costs may be apportioned between the parties on the same or adverse sides.Source   R.S.1867, Code § 623, p. 504;   R.S.1913, § 8170;   C.S.1922, § 9121;   C.S.1929, § 20-1711;   R.S.1943, § 25-1711;   Laws 1965, c. 125, § 1, p. 462. Annotations  1. Discretion of court 2. Miscellaneous 1. Discretion of court The district court did not abuse its discretion in allocating costs between several parties. City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d 256 (2011). It is within the discretion of a trial court to tax costs in certain proceedings as it may think right and equitable. States v. Anderson, 219 Neb. 545, 364 N.W.2d 38 (1985). In a suit for both money damages and equitable relief, the trial court was correct in denoting the action one in equity and finding that this section applied. Hein v. M&N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980). Upon reversal of a judgment, Supreme Court may apportion costs on appeal between the parties. Richardson v. Waterite Co., 169 Neb. 263, 99 N.W.2d 265 (1959). In equity action, taxation of costs rests in discretion of trial court. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954). Where each party prevails in part, trial court has discretion in taxation of costs. Ricenbaw v. Kraus, 157 Neb. 723, 61 N.W.2d 350 (1953). Discretion conferred on court in taxing costs is not arbitrary but a legal one. Stocker v. Wells, 155 Neb. 472, 52 N.W.2d 284 (1952). Action of trial court in taxing costs is not reviewable unless abuse of discretion is shown. In re Estate of Nielsen, 135 Neb. 110, 280 N.W. 246 (1938). In equity cases, the court has a sound discretion in taxing costs, but attorney's fees cannot be taxed as costs against the successful litigant. Hering v. Simon, 77 Neb. 60, 108 N.W. 154 (1906). Discretion conferred is not arbitrary. Fee of guardian ad litem in will contest was properly chargeable to proponents. In re Clapham's Estate, 73 Neb. 492, 103 N.W. 61 (1905). Costs in Supreme Court are entirely under the control and in the discretion of the court. German Nat. Bank of Beatrice v. Beatrice Rapid Transit & Power Co., 69 Neb. 115, 95 N.W. 49 (1903). Where there are no provisions as to taxing costs, it is discretionary with court, and ruling will not be disturbed unless abused. Woodard v. Baird, 43 Neb. 310, 61 N.W. 612 (1895). Court may apportion costs in child support case. Jones v. State ex rel. Gibson, 14 Neb. 210, 14 N.W. 901 (1883). Discretion conferred is legal, within limits of legal and equitable principles. Albers v. Dillavou, 4 Neb. Unof. 340, 93 N.W. 937 (1903). Taxation of costs will not be interfered with unless abuse is shown. Porter v. Trompen, 2 Neb. Unof. 76, 96 N.W. 226 (1901). In an equity action seeking declaratory judgment and injunction, the taxation of costs by the trial court to the plaintiff in whose favor judgment was entered was not an abuse of discretion. R & S Investments v. Auto Auctions, 15 Neb. App. 267, 725 N.W.2d 871 (2006). 2. Miscellaneous This section governs the taxation of costs in equitable actions and does not require the court to tax costs to the unsuccessful party. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). Costs may not be taxed against persons who are not parties to the litigation. State v. Canizales, 240 Neb. 811, 484 N.W.2d 446 (1992); Ludwig v. Board of County Commissioners, 170 Neb. 600, 103 N.W.2d 838 (1960). This section does not apply to actions for the recovery of money only, but rather only to "other" actions. Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb. 283, 329 N.W.2d 97 (1983). In contest over construction of a trust created by will, costs were chargeable to trustee and paid as an expense of administration. Hauschild v. Hauschild, 176 Neb. 319, 126 N.W.2d 192 (1964). Costs can only be taxed against parties to the litigation. Ludwig v. Board of County Commissioners, 170 Neb. 600, 103 N.W.2d 838 (1960). This section does not apply to actions for recovery of money only. Shellenbarger v. Shellenbarger, 137 Neb. 762, 291 N.W. 95 (1940). Taxation of costs is ministerial, and clerk may tax costs after term, within reasonable time. Barkley v. Pool, 105 Neb. 203, 180 N.W. 77 (1920). Costs in will contest may be paid out of trust estate. Smullin v. Wharton, 83 Neb. 328, 119 N.W. 773 (1909), opinion modified and rehearing denied 83 Neb. 346, 121 N.W. 441 (1909). Court cannot allow costs to unsuccessful contestant of will. Wallace v. Sheldon, 56 Neb. 55, 76 N.W. 418 (1898).