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Sherner v. National Loss Control Services Corp.11/15/2005
re still subject to the Sherners' right to have them taxed by the court. The way to invoke this right was to file a notice of intent to file a motion to have the court, not the claiming parties, determine the costs. Section 25-10-502, MCA; State ex rel. Kruletz v. District Court of Fifth Judicial Dist. (1940), 110 Mont. 36, 42, 98 P.2d 883, 886. The Sherners were not deprived of their right to object to such costs simply because costs were taxed when judgment was entered. On the contrary, the Sherners retained their right to object. They also, however, had the obligation to read the bills of costs and determine whether they desired to object to the amounts claimed.
If they wanted to object to the amount of costs in the judgment, the Sherners had an affirmative duty to, within five days of the service of the bills of costs, file and serve notice of a motion to have the same taxed by the court. Section 25-10-502, MCA. Had the required notice been filed, the court would have had the obligation to consider and tax costs itself. However, because the Sherners failed to file the required notice, their right to have costs taxed by the court was lost. Kruletz, 110 Mont. at 42, 98 P.2d at 886.
From 1895 until today the procedure for taxing costs was rather simple. Section 1867, Mont. Code of Civil Procedure (1895). The parties that were awarded costs, or their lawyers, took the lead. Costs were taxed by claiming them in a sworn bill of costs. If the unsuccessful parties, or their lawyers, were dissatisfied, they could file a notice that they wanted the court to tax the costs. Unless an objection was filed, the court need not get involved.
Until now the rules were also clear. If the successful parties wanted their costs, they had better get a bill of costs filed and served on time. If the unsuccessful parties were dissatisfied, they had better file and serve a timely notice that they wanted the court to tax costs, or they would have to pay the amount claimed.
On this day the rules change. Exactly what all of the rules are is difficult to determine from the Court's opinion. But, we now know that if the judge or the clerk is too quick in filling in the blanks the unsuccessful party no longer has to object -- it is an automatic reversal on appeal. The courts are now involved in the process even if no objection is made. I have got enough to do and I dissent from the Court's remand to re-tax costs.
JOHN WARNER
Justice Jim Rice concurring in part and dissenting in part.
I concur with the Court's opinion with the exception of Issue 4, on the taxation of costs.
The Court's error is its attempt to force the assessment of costs and the filing of the judgment into a solitary procedure and timeline, when the statutes provide that these two matters can occur separately. Section 25-10-501, MCA, initiates the cost process by providing that the party "in whose favor judgment is rendered" has five days after receiving notice of the verdict or decision to file for costs. Section 25-10-502, MCA, then allows a party who is dissatisfied with the claimed costs, within five days after receiving notice of the prevailing party's cost filing (thus, adding an extra day or days to the process when notice is mailed), to request taxation by the court "in which the judgment was rendered." In other words, the judgment may very well have been entered by then--the judgment can be filed independently of these time frames and is not to be held hostage by a dispute between the parties over costs.
Indeed, there may well be cases in which an urgency requires a judgment to be immediately entered. The Court's decision today stalls the
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