Appeal from Second District.

In view of the record, it is difficult to understand just what plaintiffs intend by the contention just stated. We have set forth the court's order and judgment in full. How it is possible to appeal from only a part of the judgment entered by the district court is quite beyond comprehension. If in this jurisdiction an appeal could be taken from an order as well as from the final judgment, there might be some merit to plaintiffs' contention. In this jurisdiction, however, appeals may be taken only from final judgments and from nothing else. That has so often been declared by this court that it would be merely a work of supererogation to refer to the numerous decisions. When an appeal is taken from a final judgment, however, the appellant may assign any error respecting any order or ruling of the court during the proceedings which may materially affect the judgment. In 1-4 this case, therefore, if plaintiffs have appealed at all, they have appealed from the judgment entered by the district court by which defendants were awarded costs in the sum of $656.17. Plaintiffs contend that that sum is excessive, and that it should have been further reduced. The judgment is therefore erroneous, if erroneous at all, because it is excessive. No other conclusion is permissible. The court's order which we have copied is no part of the judgment proper, and, standing alone, would perform no function whatever. It is merely an introductory recital which could have been omitted without affecting the judgment. If there is any appeal, therefore, it is from the judgment and from nothing else. Appeals to this court being guaranteed by the Constitution, the proceedings relating thereto, in case the jurisdictional steps have been taken, must be liberally construed so as to effectuate the exercise of the right rather than to fritter it away by a strict construction. In referring to this matter, the Supreme Court of Nevada, in Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231, held:

"Notices of appeal are to be liberally construed, and they will be held sufficient if, by a fair construction or reasonable intendment, the court can say that the appeal is taken from a judgment

in a particular case."

Roberson et al. v. Draney et al., 54 Utah 525.

If that rule be applied here, plaintiffs' appeal must be held to be from the judgment which we have set forth.

In view that such is the case, the question arises: What is invoked on this appeal? If the district court had the power to determine the question of whether the printed abstract of the record on the former appeal to this court contained improper or unnecessary matter, and that court found that such was the fact, then the costs claimed by the defendants may have been excessive to the extent that improper or unnecessary matter was contained in the printed abstract. Did the district court have the power to determine the question what matters are or are not proper to be printed in the abstract of the record in this court, or what matters are or are not necessary to be so printed? Plaintiffs contend that the district court is clothed with such power by reason of the statement contained in section 7048, supra, that it may "correct the bill of costs as in other cases. But what may that court do in other cases? No doubt, in case there is a dispute respecting any question of fact, or in case there is a difference of opinion respecting the law, it may determine that question. The district court, however, may not allow either more or less than the amount fixed by statute; nor can it, in case the amount has been fixed by another court, interfere with the amount so fixed, except upon proper proceedings familiar to all lawyers. The language of the statute, therefore, must be given a reasonable construction and effect. Manifestly, that section may not be so construed as to give the district courts power to review the judgments of this court in awarding costs pursuant to the rules of this court. Whether certain matters contained in the printed abstract of the record filed in this court are proper or improper, or are necessary or unnecessary, can only be determined by this court. If the losing party claims that the costs taxed against him are excessive for the reason that either the printed abstract or the printed brief, or both, contains improper or unnecessary matter, he may apply to this court to have the matter corrected. If, however, no such application is made, or if one be

Appeal from Second District.

5, 6

made and the same is denied, the costs allowed in this court for printed abstracts and briefs are manifestly binding upon the district court. True it is that the successful party may file a memorandum of costs in the district court in which he may claim a number of pages in excess of what are printed in the abstract; and that is also true with respect to the brief. Or he may have made a mistake in counting the pages or in computing the amount that is due him for printed abstracts and briefs, and in such event undoubtedly the district court may determine the matter according to the fact, and it may reduce the claim to the amount allowed by the rules of this court or the law of this state. That court, however, may not prescribe to this court what matters are proper or not, to be printed in the printed abstracts and briefs. To do that is to exercise the right of reviewing the judgments of this court, which power the district court does not possess. In this case it would not only amount to that, but it would amount to a review of the judgment of this court without giving us the right to pass on and correct the alleged wrong, if

any.

In Lowry v. Territory, 19 Haw. 179, it is held that the inferior courts may not revise the costs allowed by the appellate courts. To the same effect is Hall v. Hall, 45 S. C. 4, 22 S. E. 881. Moreover, it would result in compelling each case in which the district court interfered with the costs allowed in this court to be brought to this court again after it had been determined. Why compel a second appeal when the matters can be adjusted on the first one and by the only court in which is vested the final authority to review?

This brings us to the question of whether the defendants may assign cross-errors respecting the district court's interference as hereinbefore stated. Cross-errors may be assigned to correct errors which directly inhere in the judgment appealed from, but not otherwise. This court has repeatedly held that, if only a certain part of a judgment is appealed from, as in the case of Rosenthyne v. Matthews-McCulloch Co., 50 Utah, 38, 168 Pac. 957, or where an independent portion of a judgment or decree which is not involved in the appeal is sought to be cor

Roberson et al. v. Draney et al., 54 Utah 525.

7-9

rected on cross-errors, as in the case of Big Cottonwood Tanner Ditch Co. v. Shurtliff, 49 Utah, 569, 164 Pac. 856, and in the case of McCormick & Co., Bankers, v. National Copper Bank., 49 Utah, 296, 163 Pac. 1097, cross-assignments of error cannot reach such parts of the judgment but cross-appeals are necessary if it is intended to review the judgments referred to. Where, however, as in the case of Railroad v. Board of Education, 35 Utah, 13, 99 Pac. 263 cross-assignments of error directly go to the things which are necessarily involved on the appeal, this court may consider the cross-assignments of error. Now, in this case, plaintiffs appeal from a judgment in which they contend the court erred in awarding defendants costs in excess of what they are entitled to, and, upon the other hand, defendants assert that the court awarded them an inadequate amount of costs, and hence the judgment is erroneous for that reason. Plaintiffs' assignment of errors and defendants' cross-assignment of errors therefore manifestly relate to the same judgment and to the same act of the court. The defendants are therefore clearly within their rights in availing themselves of the crossassignment of errors. If therefore we are right in our conclusion that the district court was powerless to determine the matters to which we have referred, it committed manifest error in striking certain pages from the printed abstract and in denying the defendants the costs taxed in this court for those pages, and in entering the judgment before stated. It may well be that the pages complained of, or some of them, contained improper or unnecessary matter; but that question should have been presented to this court, and not to the district court.

For the reasons stated, the judgment is reversed, and the case is remanded to the district court of Weber county, with directions to reinstate the amount stricken by that court and to enter judgment for the defendants for the amount of costs allowed in this court. Defendants to recover costs on this appeal.

CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

Appeal from Sixth District.

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2.

3.

4.

5.

STATE v. CHURCH.

No. 3318. Decided June 19, 1919. (182 Pac. 218.)

LARCENY SUFFICIENCY OF EVIDENCE-FELONIOUS TAKING. In a prosecution for larceny of a steer, evidence of defendant's attempts to conceal the identification marks and his declarations held sufficient to show a felonious taking though he claimed he killed the steer in the mistaken belief that it belonged to his wife. (Page 538.)

LARCENY SUFFICIENCY OF EVIDENCE-IDENTITY OF PROPERTY. In a prosecution for larceny, evidence held sufficient to show the identity of an animal killed, though the brand and marks had been mutilated. (Page 538.)

CRIMINAL LAW-EVIDENCE-PARTS OF STOLEN ANIMAL. In a prosecution for larceny of a steer, it was not error to admit in evidence pieces of the ears arranged according to the judgment of a witness for the state to show the marks thereon. (Page 539.)

CRIMINAL LAW-EVIDENCE-VOLUNTARY ADMISSIONS OF DEFENDANT. Admissions of defendant to the sheriff concerning the offense are admissible in evidence, where the sheriff had made no promises nor threats, but merely called defendant's attention to the statute relating to killing of live stock on the range. (Page 540.)

LARCENY REQUESTED INSTRUCTIONS APPLICABILITY TO EVIDENCE. Where defendant testified that he and his stepson pursued and killed the animal in question, and defendant later admitted the killing to the sheriff, requested instructions, that the undisputed evidence showed that the stepson killed the steer when defendant was absent, and that defendant could be convicted only on proof of conspiracy, and that he must be acquitted if he had nothing to do with the killing prior thereto, was properly refused as inapplicable to evidence. (Page 540.)

Appeal from District Court, Sixth District, Garfield County; H. N. Hayes, Judge.

Ira B. Church was convicted of grand larceny, and he appeals.

AFFIRMED.

Bean & Hunt of Richfield, for appellant.