# Title 28 — Judicial Procedure, Civil

## Chapter 28-26 — Costs and Disbursements

### § 28-26-01. Attorney's fees by agreement - Exceptions - Awarding of costs and

attorney's fees to prevailing party.
1. Except as provided in subsection 2, the amount of fees of attorneys in civil actions
must be left to the agreement, express or implied, of the parties.
2. In civil actions the court shall, upon a finding that a claim for relief was frivolous, award
reasonable actual and statutory costs, including reasonable attorney's fees to the
prevailing party. Such costs must be awarded regardless of the good faith of the
attorney or party making the claim for relief if there is such a complete absence of
actual facts or law that a reasonable person could not have thought a court would
render judgment in that person's favor, providing the prevailing party has in responsive
pleading alleged the frivolous nature of the claim. This subsection does not require the
award of costs or fees against an attorney or party advancing a claim unwarranted
under existing law, if it is supported by a good-faith argument for an extension,
modification, or reversal of the existing law.
### § 28-26-02. Amount of costs in specific cases.

Costs in the district courts and in the supreme court must be as follows:
1. To the plaintiff for all proceedings before trial, ten dollars, and for each additional
defendant served with process not exceeding ten, one dollar.
2. To the defendant, for all proceedings before trial, five dollars.
3. For every trial of an issue of fact, five dollars.
4. Superseded by N.D.R.App.P., Rule 38.
5. To either party for every term not exceeding five, at which the cause is necessarily on
the calendar of the district court and is not tried or is postponed by order of the court,
three dollars, and for every term not exceeding five, excluding the term at which the
cause is argued in the supreme court, five dollars. Term fees are not taxable as costs
when a cause, properly on the calendar, is not reached for trial during the term, nor in
case a continuance is had upon the application of, or stipulation with, the party in
whose favor costs are to be taxed.
### § 28-26-03. Costs on appeal from county justice.

Repealed by S.L. 1981, ch. 320, § 111.
### § 28-26-04. Attorney's fee in instrument void.

Any provision contained in any note, bond, mortgage, security agreement, or other evidence
of debt for the payment of an attorney's fee in case of default in payment or in proceedings had
to collect such note, bond, or evidence of debt, or to foreclose such mortgage or security
agreement, is against public policy and void.
### § 28-26-05. Costs on foreclosure of liens.

Repealed by S.L. 1975, ch. 106, § 673.
### § 28-26-06. Disbursements taxed in judgment.

In all actions and special proceedings, the clerk of district court shall tax as a part of the
judgment in favor of the prevailing party the following necessary disbursements:
1. The legal fees of witnesses; sheriffs; clerks of district court; the clerk of the supreme
court, if ordered by the supreme court; process servers; and of referees and other
officers;
2. The necessary expenses of taking depositions and of procuring evidence necessarily
used or obtained for use on the trial;
3. The legal fees for publication, when publication is made pursuant to law;

4. The legal fees of the court reporter for a transcript of the testimony when such
transcript is used on motion for a new trial or in preparing a statement of the case; and
5. The fees of expert witnesses. The fees must be reasonable fees as determined by the
court, plus actual expenses. The following are nevertheless in the sole discretion of the
trial court:
a. The number of expert witnesses who are allowed fees or expenses;
b. The amount of fees to be paid such allowed expert witnesses, including an
amount for time expended in preparation for trial; and
c. The amount of costs for actual expenses to be paid the allowed expert witnesses.
### § 28-26-07. When costs allowed to plaintiff.

Costs must be allowed of course to the plaintiff upon a recovery in the following cases:
1. In an action for the recovery of real property or when a claim of title to real property
arises on the pleadings or is certified by the court to have come in question at the trial.
2. In an action to recover the possession of personal property.
### § 28-26-07.1. Notice of no personal claim.

In the case of a defendant in a civil action in a district court against whom no personal claim
is made, the plaintiff may deliver to such defendant with the summons a notice subscribed by
the plaintiff or the plaintiff's attorney, setting forth the general object of the action and a brief
description of the property affected by it, if it affects specific real or personal property, and
stating that no personal claim is made against such defendant. If a defendant on whom such
notice is served unreasonably defends the action, the defendant shall pay costs to the plaintiff.
### § 28-26-08. Costs specially limited.

In an action for assault, battery, false imprisonment, libel, slander, malicious prosecution,
criminal conversation, or seduction, if the plaintiff recovers less than fifty dollars damages, the
plaintiff may recover no more costs and disbursements than damages. In an action to recover
the possession of personal property, if the plaintiff recovers less than fifty dollars damages, the
plaintiff may recover no more costs and disbursements than damages, unless the plaintiff
recovers property also, the value of which with the damages amounts to fifty dollars, or the
possession of property is adjudged to the plaintiff, the value of which with the damages amounts
to fifty dollars. Such value must be determined by the jury, court, or referee by whom the action
is tried. When several actions are brought on one bond, recognizance, promissory note, bill of
exchange, or other instrument in writing, or in any other case for the same claim for relief
against several parties who might have been joined as defendants in the same action, no costs
other than disbursements may be allowed to the plaintiff in more than one of such actions,
which must be at the plaintiff's election, if the party or parties proceeded against in such action
or actions, at the time of the commencement of the previous action or actions, has been openly
within this state and not secreted.
### § 28-26-09. When costs allowed to defendant.

Costs must be allowed of course to the defendant in the actions mentioned in sections
### § 28-26-10. Costs in discretion of court.

In actions other than those specified in sections 28-26-07, 28-26-08, and 28-26-09, costs
may be allowed for or against either party in the discretion of the court. In all actions, when there
are several defendants not united in interest and making separate defenses by separate
answers and the plaintiff fails to recover judgment against all, the court may award costs to such
of the defendants as have judgment in their favor.
### § 28-26-11. Costs of appeal - When discretionary.

In the following cases, the costs of an appeal are in the discretion of the court:
1. When a new trial is ordered; or

2. When a judgment is affirmed in part and reversed in part.
### § 28-26-12. Costs on dismissal of action.

When an action is dismissed from any court for want of jurisdiction or because it has not
been transferred regularly from an inferior to a superior court, the costs must be adjudged
against the party attempting to institute or bring up the action.
### § 28-26-13. Interest on verdict.

When the judgment is for the recovery of money, interest, from the time of the verdict or
report of a referee until judgment finally is entered, must be computed by the clerk and added to
the costs of the party entitled thereto.
### § 28-26-14. Notice of taxing costs - Verification - Items.

Superseded by N.D.R.Civ.P., Rule 54.
### § 28-26-15. Notice of retaxation - Procedure.

Superseded by N.D.R.Civ.P., Rule 54.
### § 28-26-16. Taxation reviewed on motion.

A taxation or a retaxation of costs may be reviewed by the court upon motion. The order
made upon such motion may allow or disallow any item objected to before the taxing officer, in
which case it has the effect of a new taxation.
### § 28-26-17. Costs of postponement.

When an application is made to a court or referee to postpone a trial, the payment of costs
occasioned by the postponement may be imposed in the discretion of the court or referee as a
condition of granting the same.
### § 28-26-18. Costs on motion.

Upon a motion in an action or proceeding, costs may be awarded, not to exceed twenty-five
dollars, either absolutely or to abide the event of the action, to any party, in the discretion of the
court.
### § 28-26-19. Taxing costs.

In all actions, motions, and proceedings in the supreme and district courts, the costs of the
parties must be taxed and entered on record separately.
### § 28-26-20. Payment of costs against infant plaintiff.

When costs are adjudged against a plaintiff who is an infant or a person of unsound mind,
the guardian by whom the plaintiff appeared in the action must be responsible therefor and
payment thereof may be enforced in the manner provided in section 28-26-30.
### § 28-26-21. Payment of costs from trust funds.

In an action prosecuted or defended by a personal representative, trustee of an express
trust, or a person expressly authorized by statute, costs must be recovered as in an action by
and against a person prosecuting or defending in the person's own right, but such costs, by the
judgment, must be chargeable only upon or collected of the estate, fund, or party represented,
unless the court directs the same to be paid by the plaintiff or defendant personally for
mismanagement or bad faith in such action or defense.
### § 28-26-22. Payment of costs against state - Exception.

In a civil action prosecuted in the name of the state by an officer duly authorized for that
purpose, the state is liable for the costs in the same cases and to the same extent as a private
party. If a private person is joined with the state as plaintiff, that person is liable in the first

instance for the defendant's costs, which may not be recovered of the state until after execution
is issued therefor against such private party and returned unsatisfied.
### § 28-26-23. Action in name of state - Costs charged against party in interest.

In an action prosecuted in the name of the state for the recovery of money or property, or to
establish a right or claim for the benefit of any corporation, limited liability company, or person,
costs awarded against the party plaintiff must be charged against the party for whose benefit the
action was prosecuted and not against the state.
### § 28-26-24. Liability for costs on judgment against assignee.

In an action in which the claim for relief, by assignment after the commencement of the
action or in any other manner, becomes the property of a person not a party to the action, such
person is liable for the costs in the same manner as if the person were a party.
### § 28-26-25. Nonresident must furnish surety.

Repealed by S.L. 1983, ch. 364, § 1.
### § 28-26-26. Responsibility of surety.

The surety for costs is bound for the payment of all costs which may be adjudged against
the plaintiff in the court in which the action is brought or in any other to which it may be carried,
and for costs of the plaintiff's witnesses, whether the plaintiff obtains judgment or not.
### § 28-26-27. Dismissal when surety not given.

An action in which surety for costs is required and has not been given must be dismissed on
motion and notice by the defendant at any proper time before judgment, unless in a reasonable
time to be allowed by the court such surety for costs is given.
### § 28-26-28. Surety on becoming nonresident.

If the plaintiff in an action after its commencement becomes a nonresident of the state, the
plaintiff shall give surety for costs in the same manner as is required of a nonresident in
commencing an action.
### § 28-26-29. When additional surety demanded.

In an action in which surety for costs has been given, the defendant at any time before
judgment, after reasonable notice to the plaintiff, may move the court for additional surety on the
part of the plaintiff, and if on such motion the court is satisfied that the surety has removed from
this state or is not sufficient, the action may be dismissed, unless in a reasonable time to be
fixed by the court sufficient surety is given by the plaintiff.
### § 28-26-30. Judgment against surety.

After final judgment has been rendered in an action in which surety for costs has been given
as required by this chapter, the court, on motion of the defendant, or any other person having a
right to such costs or any part thereof, after ten days' notice of such motion, may enter judgment
in the name of the defendant or the defendant's legal representatives against the surety for
costs, or against the defendant's executors or administrators, for the amount of the costs
adjudged against the plaintiff, or so much thereof as may be unpaid. Execution may be issued
on such judgment as in other cases for the use and benefit of the person entitled to such costs.
### § 28-26-31. Pleadings not made in good faith.

Allegations and denials in any pleadings in court, made without reasonable cause and not in
good faith, and found to be untrue, subject the party pleading them to the payment of all
expenses, actually incurred by the other party by reason of the untrue pleading, including a
reasonable attorney's fee, to be summarily taxed by the court at the trial or upon dismissal of
the action.
