majority">MILLS, C. J.

This case is before us on the two grounds on which the appeal is taken as disclosed by the record, to wit: the allowance to the special master of the sum of $250.00 for his services, and also the allowance to him of $50.00 on account of attorneys fees. At the threshold of this case, we are confronted with the inquiry, as to whether or not the appeal will lie, for it is a well-settled principle of law that the mere matter of costs are not the proper subject of an appeal, and that an appellate court will not, under ordinary circumstances, review a case where costs alone are involved. This is the doctrine contended for by the learned counsel for the appellee, while counsel for .the appellant contends that the taxation of statutory costs alone cannot be appealed from, but that the allowances in this case are, properly speaking, not costs at all, but that they are allowances of compensation by the court’s order alone, and that consequently they can be reviewed by the appellate court.

This court has heretofore defined costs as “a pecuniary allowance made by positive law to the successful party in a suit, or a distinct proceeding within a suit, in consideration of and to reimburse his probable expenses.” Price v. Garland, 5 N. M. 98. The word “costs,” is a word of well known significance. It signifies, when used in relation to the expenses of legal proceedings, the sums prescribed by law, as charges for the services enumerated in the “fee bill.” Price v. Garland, supra; Apperson v. Mutual Benefit L. I. Co., 38 N. J. Law, 272.

In Disbrow v. Henshaw, 8 Cowan, 349, the court holds that a court may, in its discretion, entertain an appeal from an order for costs, and the same doctrine is laid down in Norcross v. Boulton, 16 N. J. Law, 310, and other cases.

appellate pro-cednre: final judgment. In the case at bar, the decree made the special master’s fee and the attorneys’ fees a lien on the property, and orders the property to be sold in default of payment. This is. we take it, a final decree or . . decision within the meaning of our statute, allowing any person aggrieved by any final judgment or decision of any court, to appeal.

In the case of Trustees v. Greenough, 105 U. S., 527, the court says: “Ordinarily a decree will not be reviewed by this court on a question of costs merely in a suit in equity, although the court has entire control of the matter of costs, as well as the merits, when it has possession of the cause on appeal from the final decree. But it was held by Lord Cottenham, in Angell v. Davis, (4 Myl & Craig, 360) that when the case is not one of personal costs, in which the court has ordered one party to pay them, but a case in which the court has directed them to be paid out of a particular fund, an appeal lies on the part of those interested in the fund.”

In view of the authorities above cited, and the facts as disclosed by the record before us, and as the decree granting the allowances is not a personal judgment, but requires the payment of money, and in default of such payment, orders the sale of the property, thereby creating a fund out of which they are to be paid, and as it clearly comes within the rule as laid down in Trustees v. Greenough, supra, we have come to the conclusion that this is an appeal from a final judgment or decision and is therefore regularly before us for consideration.

„ . , , Special master: tionC^ennsa" It will be observed that the original decree allowing the foreclosure of the mechanics' liens, gave the defendants until on or before January 31, 1900, to pay said liens. None of them need to have been paid e before that date. It was not specified in the decree that they need be discharged of record, but only that they be paid on or before January 31, 1900. In default of such payment, then the special master was directed to sell the property and pay the proceeds into court. Until a default had occurred in the payment of some or all of the liens, the special master had no duties to perform under his appointment.. He was not authorized by the decree to add anything to the amount necessary to be paid to avoid the sale, until the full period allowed for redemption had expired.

If the liens were paid within the time limited for their payment, then his appointment lapsed; it was only in the event of non-payment within such time that he was to enter upon and perform the duties of his appointment. The last of the liens having been paid before the expiration of the time in which such payments were decreed to be made, and the special master having been informed by a reputable attorney of this court that such was the case, he should not have proceeded with the sale, but should have adjourned it, if he had any doubt of the truth of such statement, until he could have verified it.

Saie underfle-tioni redemiH tl0n‘ Counsel for the appellant insists very strenuously, that the publication of the notice of the sale before the expiration of the time limited for redemption was with-out authority, and consequently void. We do not so understand pur statute regarding foreclosures of mortgages or liens. Sec. 3938 of our laws provide that “no real property shall be sold * * * * under or by -any order, judgment or decree of any court in this Territory until ninety days after the date of the order, judgment or decree, within which time the mortgagor, or any one for him, may pay off the decree * * * * and avoid the sale.”

The statute nowhere provides that the advertisement of sale shall not begin until after the expiration of the ninety days has expired. If property which is foreclosed under a mortgage or lien is properly advertised for the length of time prescribed by the statute and is not sold until after the expiration of the ninety days’ stay allowed by law, we can see no good reason why such sale is not legal and valid and one which conveys title.

Special master-paid wRen.not If, however, a special master, for any reason, prepares notices and advertises property for sale during the time allowed for redemption, he does so at his own risk> and if the property is redeemed, within the time limited, he cannot reimburse himself from it for the expense he has been to in preparing such notices and advertising the same, as it is an unnecessary expense and we have held that we will not tax costs for unnecessary expenses, unless required to do so by an affirmative provision of law. Givens v. Veeder, 9 N. M. 405. The preparing of the notice of sale and publishing it, in this case, before the expiration of the time set for the redemption, was an unnecessary expense, for as the liens were satisfied before the date set for redemption had expired, no sale was necessary,, and none should have been made. We think that this allowance to the special master was improper.

The allowance of the fee of $50.00 to the attorneys of the special master for legal services in preparing the notice of the sale, and the report of the same/and the order setting the sale aside come within the rule just enunciated, that we will not tax costs for unnecessary expenses. If the special master should not have prepared the notices for the sale of the propertjr, save at his own risk, within the time limited for redemption, surely he had no right or authority to employ attorneys to do it for him and pay them from the fund to be derived from the sale. As the property should not have been sold under the first decree, as the liens were all paid, the special master had nothing to do, and there was no need of his making any report at all, or of having one made for him, and if an illegal sale had pot been made, illegal because the liens had been paid, there would have been no necessity for preparing an order to set it aside. We, therefore, are of the opinion that this allowance of $50.00 was for unnecessary expenses, and should not have been made.

Appellate prac-tionsWare ‘not" considered. In the amended assignment of errors there is an assignment that the court erred in allowing the special master the costs of advertising the property for sale, but as the record shows that this item of allow-ance was not appealed from, we cannot con-sider it. In this or similar cases we can only consider matters from which appeals have been taken or writs of error sued out. The mere assignment of an error does not bring it before us for consideration if it is not appealed from, and the record in this case" shows that the only items allowed by the court which were appealed from were that of $250.00 to the special master, and $50.00 on account of attorneys’ fees incurred by the special master. We will not, therefore, review the allowance made by the court to pay the costs of advertising, as it has not been appealed from.

We are of the opinion, therefore, that the allowance of the special master’s fee of $250.00 and the attorney’s fee of $50 were improperly made, and to that extent the decree of April 20th, 1900, should be modified, but in all other respects the decree of the court below will be affirmed, and it is so ordered.

McFie, Parker, and McMillan JJ., concur; Crumpacker, J., having tried the case below, did not participate in this decision.

Citation profile

Relationships

How this case has been treated — in progress