Page:North Dakota Reports (vol. 3).pdf/143

 showing that the order vacating the verdict, and for a new trial, had been reversed by this court. After such refusal, it certainly was regular practice to apply for an order directing the entry of a judgment in conformity to the verdict; and in this case the judgment, as entered by the clerk upon the verdict, recited upon its face that the order of the District Court vacating the verdict, and granting a new trial, had been reversed. Under the circumstances we can discover no irregularity or error in applying for an order, and having the judgment entered upon the verdict.

Was it error to enter a separate judgment for the costs incurred in the Supreme Court on the former appeal? We think not. The decision and mandate of this court awarded such costs, in terms, to the plaintiff. Nor do any of defendant’s assignments of error challenge the right of plaintiff to have judgment entered in the District Court for his costs and disbursements incurred on the appeal. Defendant's assignment of error upon this feature goes only to the fact that two judgments were entered, instead of one. Our own meager statutes upon the subject matter of costs and disbursements incurred in this court afford us little in the solution of the point raised. Nor do the precedents in other jurisdictions —which for the most part are based upon local statutes—afford us much help. There are numerous precedents in other states for the entry of separate judgments for the costs and disbursements incurred in a court of review. It might happen, indeed, that a party who had prevailed in a court of review upon an appeal based upon some interlocutory order as was the case here, may be defeated, and judgment go against him at the end. In such case we do not see how the party who was awarded his costs on the appeal could ever recover them, if he was not allowed to enter a separate judgment for such costs. True, some courts have awarded the costs incurred on appeal to the successful party, conditionally, z. e. upon the condition of ultimate success on the merits. In such case the right to enter judgment for costs could not be determined in advance of final judgment; but without deciding whether, under our statute, this court possesses the