On Petition for Rehearing

Teigen, Chief Justice.

The plaintiff, as respondent, has filed a petition for rehearing.

Three points are raised in this petition which may be succinctly stated as follows: (1) the court erred in finding that the plaintiff had failed to furnish specifications of error in support of his motion for a new trial in the trial court; (2) the appeal by the defendants from the order for additur or new trial compels this court to review the whole compels this court to review the whole order and, therefore, although the plaintiff's appeal was ineffective, his arguments, nevertheless, should be reviewed on the appeal by the defendants; and (3) the court erred in awarding costs to the defendants.

In support of his first point the plaintiff points out that he did furnish to the trial court, on his motion for a new trial, a brief, which brief was also served upon the attorneys for the defendants. He argues that this brief should be considered as specifications of error. We have re-examined this brief in the light of the argument made in the petition for rehearing and adhere to our former ruling that it does not constitute specifications of error in conformity with the statutory requirements. The brief, which he now argues should be considered as being specifications of error, does not specify, with any particularity, where the evidence was insufficient to sustain the verdict. Further, we find form a review of the evidence that the evidence does support the size of the verdict.

As to the second point, an examination of the appeal taken by the defendants discloses that this appeal was taken on specifications of error duly served and filed. The errors specified, as contained in the statement of the case, were reviewed by this court and the issues raised thereby were decided. This court will disregard errors which are not specified in the statement. Thompson v. Cunningham, 6 N.D. 426, 71 N.W. 128.[177 N.W.2d 764]

Lastly, this court, in its order for judgement, awarded costs to the defendants who were the prevailing parties on this appeal. The plaintiff complains, in his petition, that in so doing this court abused its discretion as it requires the defendants to pay the costs of the transcript which, in this case, amounted to $549.00. NO transcript of the evidence was obtained by the plaintiff in support of his motion for a new trial. The trial court entered an order for additur or a new trial. The defendants took at appeal from this order. In order to take this appeal and to allow this court to review the evidence, in the light of the specifications of error, it was necessary for the defendants, as appellants, to obtain and furnish a transcript is a disbursement made by the defendants, as appellants, to properly complete their appeal. Section 28-26-06, N.D.C.C., provides:

"In all actions and special proceedings, the clerk must tax as a part of the judgement in favor of the prevailing party his necessary disbursements as follows:

"4. The legal fees of the court reporter for a transcript of the testimony when such transcript is used *** in preparing a statement of the case; ***."

Section 28-26-01, N.D.C.C., provides that in civil actions there may be allowed to the prevailing party certain sums by way of indemnity for expenses in the action in addition to his disbursements, and that such allowances are termed costs. Disbursements, however, are allowable as a matter of right but the costs are allowed in the discretion of the court. Sections 28-26-06 and 28-26-10, N.D.C.C. The expense of the transcript is a disbursement and is taxed by the clerk as a part of the judgment in favor of the prevailing party. Section 28-26-06, N.D.C.C. Fees paid to a court stenographer for a transcript upon which a reversal of an order for additur or new trail is granted by the Supreme Court are properly taxed by the clerk as a necessary disbursement in favor of the prevailing party. This is in harmony with an older case in which this court held that fees paid to a court stenographer for a transcript upon which a motion for a new trial is granted are properly taxed as a necessary disbursement in favor of the prevailing party. Swallow v. First State Bank, 35 N.D. 323, 160 N.W. 137.

For the reasons aforesaid, the petition for rehearing is denied.

Obert C. Teigen, C.J.
Ralph J. Erickstad
William L. Paulson
Harvey B. Knudson
Roy A. Ilvedsen, D.J.

The Honorable Alvin C. Struz deeming himself disqualified did not participate, the Honorable Roy A. Ilvedson, Judge of the Fifth Judicial District, sitting in his stead.