Page images
PDF
EPUB
[graphic]

Osborn v. Newberg Orchard Assoc. 36 Or. 446, 59 Pac. 711.

The costs and disbursements recoverable on the affirmance of a judgment are those

taxed in the lower court as part of the judgment there, and the costs attending the appeal therefrom: Osborn v. Newberg Orchard Assoc. 36 Or. 446, 59 Pac. 711.

CHAPTER VI.

OF COSTS AND DISBURSEMENTS.

$560. Costs-Compensation of Attorneys.

The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment or decree certain sums by way of indemnity for his attorney fees in maintaining the action or suit, or defense thereto, which allowances are termed costs. [L. 1862; D. Cd. § 538 ; H. C. § 548.]

COSTS, GENERALLY.-Costs are certain sums allowed the prevailing party by way of indemnity for attorney's fees in the suit or action; and disbursements comprise such expenditures as are necessary to maintain or defend the same, and include fees of officers and witnesses, the necessary expense of taking depositions, etc.: Rader v. Barr, 37 Or. 455, 61 Pac. 1027.

There must be some statute authorizing the recovery of costs in certain proceedings or they can not be recovered: Wood v. Fitzgerald, 3 Or. 569, 584; State ex rel. v. Estes, 34 Or. 213, 55 Pac. 25; Mitchell v. Downing, 23 Or. 448, 32 Pac. 394.

Costs, therefore, are not recoverable by defendant in an action begun before the board of medical examiners, where the case was appealed by the defendant to the circuit court and reversed, since the statute does not provide therefor: State ex rel. v. Estes, 34 Or. 213, 55 Pac. 25.

Nor can the prevailing party in an election contest recover costs: Wood v. Fitzgerald, 3 Or. 584. This ruling was followed in Hughes v. Holman, 24 Or. 1, but the court there says this principle is doubtful, and will be re-examined when the question is properly presented again.

Costs and fees of officers are allowed by various provisions throughout the code and miscellaneous laws. Statutes allowing costs and disbursements are to be strictly construed, and an officer can demand only such fees as the statute allows him: Jackson v. Siglin, 10 Or. 93.

Costs may be paid in any kind of money recognized by law, except in cases arising under the specific contract law: Coffin v. Coulson, 2 Or. 205.

The proper mode of correcting an error as to costs is an appeal from the judgment: Cross v. Chichester, 4 Or. 114.

Where a judgment awards plaintiff full costs and disbursements where he is only entitled to a limited amount, the appeal is properly from the judgment, and not from the statutory proceeding for taxing costs; for in such case the objection is not to the taxing of costs by the clerk, under § 569, but to the judgment allowing full costs, which the clerk is bound to tax as the judgment directs: Burt v. Ambrose, 11 Or. 26, 4 Pac. 465.

$561. When Costs Allowed to Plaintiff.

On an appeal from a clerk's taxation of costs, the original judgment awarding the costs to the prevailing party can neither be attacked nor reviewed. The only questions on such appeals are the items or amounts to be taxed: Purvis v. Kroner, 18 Or. 414, 23 Pac. 260.

The surety in the bond conditioned for the payment of such sum as may, from any cause, be adjudged against the plaintiff is liable for costs in the action: Jordan v. Lavine, 15 Or. 329, 15 Pac. 281; Carlon v. Dixon, 14 Or. 294, 12 Pac. 394.

ATTORNEYS' FEES.-A stipulation for reasonable attorney's fees in a promissory note is valid: Peyser v. Cole, 11 Or. 39, 4 Pac. 520, 50 Am. Rep. 451; Wilson S. Mach. Co. v. Moreno, 6 Saw. 55; Bank of Brit. N. Am. v. Ellis, 6 Saw. 96; and does not destroy its negotiability: Benn v. Kutzschan. 24 Or. 28, 32 Pac. 763; but the stipulation of a certain sum or per cent in a note is void. and no attorney's fees whatever will be allowed: Balfour v. Davis, 14 Or. 47, 12 Pac. 89; Levens v. Briggs, 21 Or. 338, 28 Pac. 15; Commercial Nat. Bank v. Davidson, 18 Or. 58, 22 Pac. 517; Kimball v. Moir, 15 Or. 428, 15 Pac. 669.

In a suit to foreclose a chattel mortgage in Oregon given to secure a note made out of the state, containing a provision for the payment of "ten pen cent additional as cost of collection," such provision will not be enforced, though valid and binding in the state where the note was made: Commercial Nat. Bank v. Davidson, 18 Or. 58, 22 Pac. 517.

In a suit to foreclose a mortgage executed to secure the payment of a promissory note, where there is an issue in the pleadings as to what is reasonable attorney's fee, some evidence must be introduced on the subject to sustain an allowance of any sum beyond the amount fixed by statute: Bradtfeldt v. Cooke, 27 Or. 194, 40 Pac. 1, 50 Am. St. Rep. 701.

Upon an issue of the reasonableness of the attorney's fees, the court has no authority to make a finding upon such issue where the jury fail to include in their verdict any allowance for the fees provided for by the terms of the note: Cox v. Alexander, 30 Or. 444, 46 Pac. 794.

Costs are allowed of course to the plaintiff upon a judgment in his favor in the following cases :

1. In an action for the recovery of the possession of real property, or where a claim of title or interest in real property, or right to the possession thereof, arises upon the pleadings, or is certified by the court to have come in question upon the trial;

2. In actions for fines and forfeitures, and the actions provided for in chapters IV and V of title V of this code;

3. In an action involving an open mutual account, where it appears to the satisfaction of the court that the sum total of such accounts of both parties exceeds one hundred and fifty dollars;

4. In an action for the recovery of personal property;

5. In an action not hereinbefore specified, for the recovery of money or damages, when the plaintiff shall recover fifty dollars or more.

But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, seduction, or breach of promise of marriage, if the plaintiff recovers less than fifty dollars damages, he shall recover no more costs and disbursements than damages; and in an action to recover the possession of personal property, if the plaintiff recover property or the value thereof, as established on the trial, and damages for the detention of the same, in all less than fifty dollars, he shall recover no more costs and disbursements than the sum of such value and damages. |L. 1862; D. Cd. § 539; H. C. § 549.]

COSTS.-This section applies to costs in actions commenced in the circuit and county courts only: Nurse v. Justus, 6 Or. 75; Burt v. Ambrose, 11 Or. 30, 4 Pac. 465. Costs are never allowed to both parties: McDonald v. Emmons, 3 Or. 475.

Costs are allowed to the plaintiff upon a judgment in his favor, but if in such action he recover property or the value as established on the trial, and damages for detention, in all less than $50, he can recover no more costs and disbursements than the sum of such value and damages: Phipps v. Taylor, 15 Or. 488, 16 Pac. 171.

ACTIONS FOR REAL PROPERTY.Where the allegations put the question of title directly in issue, the plaintiff is entitled to costs, though he recover less than $50 by the judgment: Crossman v. Lander, 3 Or. 495.

Where the right of possession of real property is involved, a person is entitled to costs upon a judgment in his favor,_even though the amount is less than $50: Bentley v. Jones, 7 Or. 109.

OPEN MUTUAL ACCOUNT, WHAT IS. -In an action to recover damages for the breach of a contract, although the defendant's answer may contain a counterclaim for more than $150, which counterclaim is founded on an account, this is not an open mutual account in the sense of this subdivision: Mason v. Riner, 18 Or. 153. 22 Pac. 532.

Where the account is one in which some item of the account is not settled by the parties, whether the account consist of one or many items; or where there have been running or current dealings between the parties, and the account is kept open with the expectation of further dealings, and there are mutual charges, such an account is one within the meaning of this subdivision: Purvis v. Kroner, 18 Or. 416, 23 Pac. 260.

Where one performs services for another at his request, and charges him with the reasonable worth of the same, and the latter expends money for and loans money to the former at his request, and charges him therewith, the account is an open mutual one within the meaning of this section: Hayden v. Waymire, 10 Ör. 369.

OTHER CASES.-A claim for balance duc for work done after deducting a single payment does not constitute a case involving a mutual account: Lockwood v. Hansen. 16 Or. 102, 17 Pac. 575.

Where, in an action upon a note to recover an amount due thereon exceeding the amount of $50, the defendant, by pleading a counterclaim, reduced the amount of the recovery to a less sum than $50, the plaintiff was not entitled to recover costs and disbursements in the action: Rayburn v. Hurd. 19 Or. 59, 23 Pac. 669.

In an action to recover damages for the breach of a contract, if the plaintiff recover less than $50 he can not recover costs, although the defendant's answer may contain a counterclaim for more than $150, which counterclaim is founded on an account: Mason v. Riner, 18 Or. 153, 22 Pac. 532.

Costs are an incident of the judgment, . and when parties stipulate that plaintiff may take judgment against the defendant, plaintiff will be entitled to costs: Stewart v. Corbus, 15 Or. 68, 13 Pac. 647.

COSTS, WHEN ALLOWED TO DEFENDANT.-When the plaintiff in the cases above specified is not entitled to recover costs, the defendant is: See § 563, post.

Under subd. 5, when the plaintiff recovers a judgment for less than $50, he is not entitled to recover costs, and the defendant therefore is, as a mattter of course: Lockwood v. Hanson, 16 Or. 104, 17 Pac. 575.

[graphic]

§ 562. Costs When Several Actions are Brought on Same Cause of Action. When several actions shall be prosecuted for the same cause of action, against several parties who might have been joined as defendants in the same action, disbursements shall be allowed the plaintiff in each action if he prevail therein, but costs shall not be allowed such plaintiff in more than one of such actions, which shall be at his election, unless the party or parties prosecuted in such other action or actions shall, at the time of the commencement of the previous action, have been without this state or secreted therein. [L. 1862; D. Cd. § 540; H. C. § 550.]

§ 563. Costs, When Allowed to Defendant.

Costs are allowed of course to the defendant in the actions mentioned in section 561, unless the plaintiff be entitled to costs therein; and when there are several defendants not united in interest, and making separate defenses by separate answers, costs shall be allowed or not to each of such defendants as if the action were commenced against him separately. [L. 1862 ; D. Cd. § 541 ; H. C. § 551.]

DEFENDANT, WHEN ENTITLED TO RECOVER COSTS: See note to § 561. FAILURE OF DEFENDANTS TO SEVER THEIR DEFENSE will preclude them from

§ 564. Amount of Costs.

each recovering his costs, as but one bill of costs can be allowed: Tyler v. Trustees, 14 Or. 493, 13 Pac. 329.

Costs, when allowed to either party, are as follows:

1. In the supreme court, on an appeal to the prevailing party, fifteen dollars;

2. In the circuit court, to the prevailing party when judgment is given without trial of an issue of law or fact, or upon an appeal, five dollars; when judgment is given after trial of an issue of law or fact, ten dollars;

3. In the county court, one half the amount allowed in the circuit court.

But when on an appeal to the supreme or circuit court a new trial is ordered, or a decision given modifying the judgment appealed from, the costs on appeal shall be allowed or not, in the discretion of the appellate court. [L. 1862; D. Cd. § 542; H. C. § 552.]

COSTS IN PROBATE PROCEEDINGS: See § 1101, post.

THIS SECTION applies to cases brought by appeal to the various courts named: Hollister v. Hagin, 3 Or. 319; Nurse v. Justus, 6 Or. 75; Burt v. Ambrose, 11 Or. 29, 4 Pac. 465.

Where a judgment is modified on appeal to the circuit court, the question of costs is in the sound discretion of that court, and its decision will be disturbed only in case of abuse: Sugar Pine L. Co. v. Garrett, 28 Or. 172, 42 Pac. 129.

§ 565. Disbursements, What Constitute, and When Allowed.

A party entitled to costs shall also be allowed for all necessary disbursements, including the fees of officers and witnesses, the necessary expenses of taking depositions by commission or otherwise, the expense of publication of the summons or notices, and the postage where the same are served by mail, the compensation of referees, and the necessary expense

of copying any public record, book, or document used as evidence on the trial. [L. 1862; D. Cd. § 543; H. C. § 553.]

See $569 as to what items constitute legitimate disbursements.

$566. Costs and Disbursements in Suit.

In a suit, costs and disbursements shall be allowed to a party in whose favor a decree is given, in like manner and amount as an action, without reference to the amount recovered or the value of the subject of the suit, unless the court otherwise directs. [L. 1862; D. Cd. § 544; H. C. § 554.]

COSTS IN EQUITY CASES are within the sound discretion of the court, under this section, which discretion will not be reviewed except on a clear showing of abuse: Lovejoy v. Chapman, 23 Or. 575, 32 Pac. 687; Cole v. Logan, 24 Or. 314, 33 Pac. 568; Fleming v. Carson, 37 Or. 225, 62 Pac. 374.

This discretion extends only to who shall pay costs, and once that discretion has been exercised by the court it is subject to review only for abuse, and the decision ought to be as binding on the lower court upon a motion to vacate judgment as on the appellate court, and can not be changed: Nicklin v. Robertson, 28 Or. 284, 42 Pac. 993, 52 Am. St. Rep. 790, note.

It is not an abuse of this discretion to tax the costs against defendant upon a decree rendered in favor of plaintiff in a suit to redeem a contract for the purchase of land which had been assigned to defendant as security for a loan, where, although plaintiff did not tender any sum to defend

567. Fees of Officers.

ant for the redemption of the contract, the latter did not admit that he held the property as security, or was ready or willing to reassign the contract on payment of the amount due: Lovejoy v. Chapman, 23 Or. 571, 32 Pac. 687.

Nor is it abuse of such discretion to allow costs to neither party where the appellant's cause of suit was based upon an alleged prior appropriation, while the court found that the defendant was the prior appropriator, and there were also many equities in favor of the defendant: Cole v. Logan, 24 Or. 314, 33 Pac. 568.

In a suit to dissolve a partnership the court expenses should ordinarily be chargeable against the assets of the partnership, unless one partner was at fault so that he should be charged with costs as a punishment: Fleming v. Carson, 37 Or. 225, 62 Pac. 374.

As to what items are legitimate disbursements, see § 569, post.

Every officer, witness, or other person required to do or perform any act or service for any party to any action, suit, or proceeding whatever, shall be entitled to demand and receive from such party the compensation which the law allows therefor in advance; but a party to any action, suit, or proceeding in any court of justice in this state may at his option pay the fees of the officers thereof in advance, or give such officers an undertaking with sufficient sureties therefor. The costs and disbursements which a party is entitled to recover from another may be collected by the execution to enforce the judgment or decree as a part thereof. The fees secured to the officers of the court, or either of them, by any party to the judgment or decree, may be collected by an execution against the property of such party and that of his sureties in the undertaking therefor. Such officers' execution may issue in the name of the clerk as plaintiff in the writ, and for the benefit of all officers of the court to whom fees are so due and secured, whenever an execution might issue to enforce the judgment or decree at the instance of the prevailing party therein. [L. 1862, p. 141; L. 1864; D. Cd. § 545; H. C. § 555.]

When a judgment and costs rendered against a party has been satisfied on the record, an additional cost bill, filed four months after the satisfaction of judgment, can not be entered and execution issued by

the clerk thereon until the judgment has been reopened or set aside: Snipes v. Beezley, 5 Or. 421.

As to legitimate items of disbursement, see § 569.

[graphic]
[ocr errors]

§ 568. Costs and Disbursements to be Taxed by Clerk.

Costs and disbursements shall be taxed and allowed by the clerk. No disbursements shall be allowed any party unless he shall file with the clerk, within five days from the entry of judgment or decree, a statement of the same, which statement must be verified except as to fees of officers. A statement of disbursements may be filed with the clerk at any time after five days, but in such case a copy thereof must be served upon

the adverse party. A disbursement which a party is entitled to recover must be taxed, whether the same has been paid or not by such party. The statement of disbursements thus filed, and costs, shall be allowed of course unless the adverse party, within two days from the time allowed to file the same, shall file his objections thereto, stating the particulars of such objections. [L. 1862, p. 141; L. 1864; D. Cd. § 546; H. C. § 556.]

TIME WITHIN WHICH COSTS MUST BE TAXED.-In many cases it is inconvenient and almost impossible to tax the costs at the close of the term and before the final adjournment of the circuit court, and the practice is to leave a blank in the entry of the judgment and fill out when the costs are afterwards taxed: State v. Munds, 7 Or. 83.

Objections to cost bills should not be entertained after the lapse of five months, when no objection was filed within two days, unless it is shown that the delay resulted from mistake, inadvertence, surprise, or excusable mistake: Hislop v. Moldenhauer, 24 Or. 107, 32 Pac. 1026.

The time for filing cost bills and objections thereto should be computed by excluding the first day and also the last day, when it falls on Sunday: Nicklin v. Robertson, 28 Or. 284, 42 Pac. 993, 52 Am. St. Rep. 790. note.

VERIFICATION.-The verification of a cost bill must be as specific and formal as the verification of a pleading: Crawford v. Abraham, 2 Or. 167; Cross v. Chichester, 4 Or. 114.

The verification may be made by the attorney of the party if he has knowledge of the facts: Morris v. Rodgers. 26 Or. 278, 38 Pac. 931. 46 Am. St. Rep. 629.

BILL OF COSTS.-The bill of costs should specify each item separately: Walker V. Goldsmith, 16 Or. 161, 17 Pac. 865; Cross v. Chichester, 4 Or. 114.

THE OBJECTION TO A BILL need not be on oath, but it must point out particularly the errors in the bill: Cross V. Chichester, 4 Or. 114; Walker v. Goldsmith, 16 Or. 161, 17 Pac. 865.

The cost bill should set out each item separately, and the objection should be to each item to which obiection is made: Wilson v. Salem, 3 Or. 483.

No objection to any item can be considered or entertained unless made before the taxing officer in the court below, and within the time allowed by law: Walker v. Goldsmith, 16 Or. 161, 17 Pac. 865.

The filing of an affidavit in support of a cost bill after the filing of objections thereto is a waiver of the point that the objections were not filed within the proper time: Hammer v. Downing, 39 Or. 504, 67 Pac. 30.

Where an original answer was rendered nugatory by the filing of an amended answer, the cost of including such amended answer in the abstract on appeal will be taxed to the appellant: Hammer v. Downing, supra.

Where appellant on reversal has filed a verified statement of his disbursements within five days from the entry of judgment on appeal, and no objection is filed within the prescribed time, the clerk is without discretion in the amounts of costs and disbursements other than those demanded in the cost_bill: Hammer v. Downing, 39 Or. 504. 65 Pac. 990.

WHERE NO OBJECTIONS ARE FILED TO a statement of costs, the clerk has no discretion in allowing the items therein contained: Nicklin v. Robertson, 28 Or. 285, 42 Pac. 993, 52 Am. St. Rep. 790, note. For legitimate items of disbursement, see note to the next section.

COST BILLS IN THE SUPREME COURT.--The provisions of this section regarding the service of cost bills, when filed more than five days after entry of judgment or decree, regulate the practice in the supreme court as well as in the circuit courts: Rader v. Barr, 37 Or. 458, 61 Pac. 1027.

This section is a rule of procedure in the supreme court: Hammer v. Downing, 39 Or. 504, 67 Pac. 30.

§ 569. Clerk to Pass Upon Objections - Appeal to Court.

When objections are made to the claim for costs or disbursements, the party seeking to recover the same may, within five days after said objections are filed, file with the clerk an amended verified statement showing the materiality and necessity of each item so objected to, whereupon the clerk shall forthwith pass upon the same, and indorse upon said verified statement or append thereto the charges allowed or disallowed: Provided, that no officer's fees shall be recovered as a disbursement, unless such officer

« PreviousContinue »