(44 Nev. 98)

DIXON v. SECOND JUDICIAL DIST.

COURT OF NEVADA IN AND FOR

WASHOE COUNTY. (No. 2370.)

(Supreme Court of Nevada. June 8, 1920)

1.  Costs <<3-  Not allowable in absence of statutory authority.

Costs are wholly the creature of statute, and are not allowable in the absence of the statute permitting such allowance.

2.  Costs <<172-  Attorney’s fees not allowable in action for services appealed from justice court.

An action to recover attorney’s fees, appealed from a justice of the peace to the district court, is tried as other trials in the district court under Rev. Laws ¶ 5794, and, since there is no statute authorizing allowance of attorney’s fees to the successful plaintiff in such an action, none can be allowed in view of Rev. Laws ¶ 5376, providing that the compensation of the attorney is governed by agreement, express or implied.

3.  Certiorari <<64(2) – Inquiry limited to jurisdiction of lower court.

In original proceedings in certiorari to review a judgment including attorney’s fees because the court had no jurisdiction to allow such fees, the inquiry will not be extended further than to determine whether the lower court had jurisdiction to make the order complained of.

Original proceeding in certiorari by J.B. Dixon against the Second Judicial District Court of the State of Nevada in and for the County of Washoe. Writ granted, and judgment of the court modified by striking therefrom the allowance of the attorney’s fees.

See, also 183 Pac. 312.

J.B. Dixon, of Reno, for petitioner.

Anthony M. Turanco, of Reno, for Respondant.

SANDERS, J.  This is an original proceeding in certiorari. The return to the writ shows that A. Grant Miller and Gray Mashburn, copartners doing business under the firm name and style of Miller & Mashburn, brought an action in the justice’s court, Reno township, county of Washoe, against J.B. Dixon, to recover the sum of $138.88 for legal services rendered the defendant under a special contract of employment. The justice rendered judgment for the full amount and taxed and included in the judgment the costs allowed by law. J.B. Dixon appealed the case to the district court, where a trial was had de novo before said court without a jury. The court, in accordance with its findings of facts and conclusion of law, gave judgment as follows:

“Now, therefore, by reason of the premises, it is ordered, adjudged, and decreed that the plaintiffs herein have and recover from the said defendant the sum of $138.88, and also costs of this action and an attorney’s fee of $75.”

The relator contends that the trial court was without jurisdiction, power, or authority to include in its judgment the item of $75 as an attorney’s fee. That this situation is correct we fully agree.

[1]  Costs are wholly the creature of statute, and hence are not allowable in the absence of a statute permitting such allowance. 20 Cyc. 24; 5 Encyc. Pl. & Pr. 110; 7 R.C.L. 792.

[2] The compensation of an attorney and counselor for his services is governed by agreement, express or implied, and is not restrained by law. Section 5376, Rev. Laws.

The general rule is that counsel fees are not recoverable by a successful party either in an action at law or in equity, except in the enumerated instances where they are expressly allowed by statute. Mooney v. Newton, 43 Nev.-----, 187 Pac. 721; Miller v. Kehoe, 107 Cal. 340, 40 Pac. 485. And in the absence of a statute authorizing it in plain terms, no such fee can be taxed on appeal. 11 Cyc. 231; 5 Standard, 1000.

Turning to our statute, we find no warrant therein for the allowance of an attorney’s fee on appeal from a justice’s court. When an action commenced in said court is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court.  Section 5794, Rev. Laws. But there is nothing in this provision or under any other section of the Practice Act that confers upon the district court power to award costs not expressly authorized by statute.

[3] The inquiry of a writ of certiorari will not be extended further than to determine where the inferior tribunal has jurisdiction to make the order complained of.

Being of the opinion that the court exceeded it jurisdiction in awarding an attorney’s fee, the judgment will be modified according to the views here expressed.  As thus modified the same will be and is hereby affirmed.

COLEMAN, C.J., and DUCKER, J., concur.