Ferguson v. Byers

• Decision Date: 26 May 1902
• Citation: Ferguson v. Byers, 40 Or. 468, 69 P. 32 (Or. 1902)
• Parties: FERGUSON v. BYERS.
• Court: Oregon Supreme Court

69 P. 32

40 Or. 468

FERGUSON v. BYERS.

Supreme Court of Oregon

May 26, 1902

Action by B.I. Ferguson against Mrs. Ollie M. Byers.Judgment for defendant was reversed on appeal, and plaintiff files motion to retax costs.Motion denied.

Carey F. Martin, for the motion.

Frank Holmes, opposed.

PER CURIAM.

This a motion to retax costs.The judgment of the court below having been reversed, the appellant filed a cost bill, in which he demanded, inter alia, for the transcript of the cause $19.20; for printing the abstract of the record and brief $116 and $41, respectively, and for stenographer's fees in preparing papers for the appeal, $18.75.The respondent within the time prescribed by statute, objected to these items, alleging that the claim for the transcript was excessive because there had been improperly included therein documents not required; that the reasonable cost of copying records necessary for the appeal could not exceed the sum of $2.10; that the abstract, in excess of 20 pages, was irrelevant and that the cost of publishing the material part thereof should not be more than $13; that the brief is greatly enlarged by repetitions and that the relevant part thereof does not exceed 21 pages, the publication of which could have been secured for the sum of $13.60; and that the stenographer's fees were not allowable as a disbursement.The appellant thereupon filed an amended verified statement wherein he attempted to show that they were reasonable, and that the prolixity of the record was made so by the respondent, thereby requiring a voluminous abstract and brief.The clerk allowed for the transcript the sum of $10; for printing the abstract, $31.45; and for the brief, $28.05; and disallowed the demand for stenographer's fees; whereupon appellant's counsel filed a motion to retax the disputed items, contending that the objections so interposed were not sufficiently definite to authorize the clerk to make any change in the costs so demanded.

If the prevailing party, within five days from the entry of judgment, files a statement of the costs and disbursements to which he claims to be entitled, the adverse party, within two days from the time allowed to file the same, may file objections thereto, stating the particulars of such objections.Hill's Ann.Laws, § 556.The objections to the cost bill ought to be sufficiently definite to notify the prevailing party wherein it is claimed the disputed items are unwarranted and to what extent they are unreasonable, and, if the averments are controverted by an amended verified statement, the issues thus framed properly present the questions to be determined by the clerk in the first instance.In the case at bar, the objections specify with particularity the items controverted, and state wherein it is claimed they are unwarranted and to what extent they are excessive and unreasonable, and, in our opinion, are sufficiently definite to call attention thereto and to authorize a revision thereof.

The method prescribed for preparing causes for trial in this court, so far as applicable to the question involved, is as follows: "Transcripts on appeal in civil cases, unless otherwise directed by the appellant, shall include only a copy of the judgment roll,--that is, the pleadings upon which the cause was tried, summons and proof of service thereof bill of exceptions, orders relating to a change of parties, the entry of judgment, and such other journal entries or orders only as involve the merits and necessarily affect the judgment, the notice of appeal, and any order enlarging the time in which to file the transcript, and a certificate of the clerk of the filing of the undertaking."Rule 1(35 Or. 587, 37 P. v).Rule 2(35 Or. 588, 37 P. v) prescribes the form and arrangement of the transcript, and in a note thereto the following explanation is given: "The foregoing form is intended only as a suggestion, and is to be varied according to the circumstances of each particular case.The actual facts of the case will indicate what is to be done, but...