Rhodenbaugh v. Stingel , 31 Idaho 594 ( 1918 )

MORGAN, J.

Appellants petitioned the district judge for the organization of Drainage District No. 2 of Ada county. Objections thereto were made by certain affected land owners, including respondents. After a hearing the district was declared organized. Subsequently appellants filed a cost bill containing items, among others, of expense incurred by them preliminary to filing the petition and in preparation for the hearing thereon. Bespondents objected to the allowance of certain of the items and the judge sustained, in part, their objection. Whether the amount allowed was taxed against the district or against the objectors, does not appear. This appeal is from the order disallowing certain of the items.

A motion to dismiss has been made upon the ground that the order is not appealable. The right to appeal, if it exists, must be found in the constitution or statutes. (Evans State Bank v. Skeen, 30 Ida. 703, 167 Pac. 1165; State v. Grady, 31 Ida. 272, 170 Pac. 85.) Sess. Laws 1913, chap. 16, p. 58, amended by Sess. Laws 1915, chap. 42, p. 123, known as the drainage district law, by virtue of which this proceeding was had, makes no provision for allowance of costs upon an order organizing a district, nor for an appeal with reference thereto. Appellant contends, however, that the action complained of is either a special order made after final judgment, or is itself so final as to be appealable, within the terms of Bev. Codes, sec. 4807, as amended Sess. Laws 1911, chap. 111, p. 367.

This court has decided that an order organizing a drainage district, following the first hearing on the petition therefor is not a final judgment (In re Organization of Drainage Dist. No. 1, 30 Ida. 351, 164 Pac. 1018), therefore the order appealed from cannot be said to be one made after final judgment. Nor is an order taxing costs a final judgment. The right to costs is purely statutory (Cronan v. District Court, 15 Ida. 462, 98 Pac. 614; Schmelzel v. Board of County Commrs., 16 Ida. 32, 133 Am. St. 89, 100 Pac. 106, 17 Ann. Cas. 1226, 21 L. R. A., N. S., 199; Smith v. Faris-Kesl Const. Co., 27 Ida. 407, 150 Pac. 25) and by Rev. Codes, secs. 4901 and 4903, their allowance as a matter of course is made dependent upon, and a mere incident to, a final judgment. Not only has no final judgment been made or entered herein, but. there is no constitutional or statutory provision permitting the recovery of costs upon an order declaring a drainage district organized. The district may, or may not, be liable for the necessary expense preliminary to its organization. That question is not properly before us for it cannot be litigated in the manner here sought to present it.

All proceedings relative to the allowance of costs were a nullity. The appeal is dismissed. Costs are awarded to respondents.

Budge, C. J., and Rice, J., concur.