25-1708 Plaintiff's costs; when allowed.
25-1708. Plaintiff's costs;when allowed.Where it is not otherwise providedby this and other statutes, costs shall be allowed of course to the plaintiff, except as waived or released in writingby the plaintiff, upon a voluntary payment to the plaintiff after the actionis filed but before judgment, or upon a judgment in favor of the plaintiff, in actions for the recoveryof money only orfor the recovery of specific real or personal property. SourceR.S.1867, Code § 620, p. 504; R.S.1913, § 8167; C.S.1922, § 9118; C.S.1929, § 20-1708; R.S.1943, § 25-1708; Laws 2009, LB35, § 11. Cross ReferencesAgreement to pay costs as part of settlement, authorized, see section 25-2240. Annotations1. Allowance2. Disallowance3. Miscellaneous1. AllowancePlaintiff, in action for recovery of money only, is ordinarily entitled to costs where he recovers judgment. Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950).In a suit to quiet title in persons claiming adverse possession of specific real property, costs follow the judgment. Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d 404 (1948).Ordinary rule is that the successful party is entitled to judgment for costs. Tobas v. Mutual Building & Loan Assn., 147 Neb. 676, 24 N.W.2d 870 (1946).Where a judgment is obtained for the recovery of specific real property the costs follow the judgment. Tuttle v. Wyman, 146 Neb. 146, 18 N.W.2d 744 (1945).Where plaintiff's action is for a recovery of money only, costs shall be allowed of course to the plaintiff upon a judgment in his favor. Shellenbarger v. Shellenbarger, 137 Neb. 762, 291 N.W. 95 (1940).Where judgment is properly rendered against surety company on official bond a reasonable attorney's fee may be taxed as part of costs. Ericsson v. Streitz, 132 Neb. 692, 273 N.W. 17 (1937).On appeal from justice court by defendant, where no setoff is pleaded, plaintiff is entitled to costs regardless of amount of judgment. Miller v. Henderson, 76 Neb. 383, 107 N.W. 586 (1906).2. DisallowanceAward of costs to plaintiff was not required in equity action to determine lien. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).Judgment on counterclaim for nominal damages would not carry costs when plaintiff was entitled to judgment in substantial amount. Stewart v. Spade Township, 157 Neb. 93, 58 N.W.2d 841 (1953).3. MiscellaneousThis section does not apply strictly where defendant prevails on a counterclaim; the fact that a defendant may procedurally bring a cause as a counterclaim does not preclude him from recovery of costs when he prevails on such. Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb. 283, 329 N.W.2d 97 (1983).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 does not apply. Hein v. M&N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980).Section recognizes common law precept. Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969).Costs which have accrued in district court prior to judgment of reversal abide the final determination of the cause. National Masonic Accident Assn. v. Burr, 57 Neb. 437, 77 N.W. 1098 (1899).