Griffith v. Montandon

• Decision Date: 13 February 1894
• Citation: 35 P. 704,4 Idaho 75
• Parties: GRIFFITH v. MONTANDON
• Court: Idaho Supreme Court

35 P. 704

4 Idaho 75

GRIFFITH v. MONTANDON

Supreme Court of Idaho

February 13, 1894

COST BILL-ONUS OF PROOF.-When the items of a cost bill are denied by the affidavit of the party against whom such costs are claimed, the onus of proof is on the party claiming the costs.

MOTION TO TAX COSTS-EVIDENCE CONSIDERED.-When the record contains the statement that it contains all of the evidence considered on the hearing of a motion to tax costs, there is no presumption that the judge took into consideration certain facts of which he had actual knowledge, in the determination of such motion.

ELISOR POWERS OF-COMPENSATION OF.-An elisor appointed to execute powers and orders of the court is invested with the powers duties, and responsibilities of the sheriff in the performance of such duties, and is entitled to the compensation allowed the sheriff for performing them when he demands the same.

GRATUITOUS SERVICES OF OFFICER OR WITNESS CANNOT BE TAXED.-If an officer or witness expressly says he makes no charge for services rendered, the successful party cannot tax against the losing party the fees which such persons would have been entitled to if they had charged therefor.

WITNESS NOT TESTIFYING NOT TO BE TAXED IN BILL.-If a party procures the attendance of a witness who does not testify, the expense of such witness is not chargeable to the losing party, unless some sufficient reason is shown that would legally excuse his failure to testify.

INCURRED COSTS.-Section 4912 of the Revised Statutes restricts the recovery of costs to those necessarily incurred.

(Syllabus by the court.)

APPEAL from order of District Judge for Alturas County.

Case modified taxing the costs, and cause remanded with instructions.

A. F Montandon, for Appellant.

It is a rule of pleading that a fact affirmed by one and denied by the other, the burden of proof shifts on the affirmant; otherwise he must fail. (Story's Equity Pleading, sec. 875; Code, secs. 4183, 4217.) Plaintiff's affidavit on best knowledge and belief, without facts showing whereon such information was obtained or belief grounded, opposed by positive affidavit on facts therein stated, not only offsets but nullifies plaintiff's affidavit, and is clothed with a prima facie proof as entitles defendant to prevail. (Kelly v. Jackson, 6 Pet. 621.) In absence of other proof plaintiff should fail. (Mitchell v. Carney, 41 Kan. 139, 21 P. 158; Barbieri v. Remeli, 84 Cal. 174, 24 P. 113.) The statute seems to allow costs chargeable to the losing party only when actually disbursed. (Code, sec. 4912.) Costs of witnesses are only chargeable for each day's actual attendance. (Code, sec. 6139.) Witnesses not sworn and who do not testify are prima facie unnecessary without showing to the contrary; costs as to them cannot be recovered. (Pugh v. Good, 19 Or. 85, 23 P. 827; Osborne v. Gray, 32 Minn. 53, 19 N.W. 81; Randall v. Falkner, 41 Cal. 242.) Useless costs will not be allowed. (Sommercamp v. Catlow, 1 Idaho 720; McConnell v. McCormick, 3 Idaho 227, 28 P. 421; Pugh v. Good, 19 Or. 85, 23 P. 827.) Witnesses not sworn and who do not testify are presumed unnecessary unless the contrary appear; facts showing they were necessary to overcome the presumption ought to appear. (McConnell v. McCormick, 3 Idaho 227, 28 P. 421.)

Kingsbury & Parsons, for Respondent.

The cost-bill filed by plaintiff in the cause was verified by one of the attorneys for plaintiff in the exact form and words prescribed by the statute authorizing the filing of a cost-bill. (Code Civ. Proc., sec. 4912.) "Where the affidavits are conflicting and some of the items relate to facts of which the court has actual knowledge, the rulings will not be disturbed." (Fanning v. Leviston, 93 Cal. 186, 28 P. 943.) Where objections to items of costs and disbursements charged in a cost-bill were heard and decided by the trial court upon conflicting evidence, an order denying a motion to retax will be affirmed on appeal. (Hoyt v. Selby Smelting Co., 90 Cal. 339, 27 P. 288.) "The allowance or disallowance, in nearly every instance, is left to the trial judge." (Barnhart v. Kron, 88 Cal. 449, 26 P. 210.) Attendance being shown, the charge was a proper one. (Charles Baumbach Co. v. Gessler, 82 Wis. 231, 52 N.W. 259, 260; Alexander v. Harrison, 2 Ind.App. 47, 28 N.E. 119; Ohio etc. Ry. Co. v. Trapp, 4 Ind.App. 69, 30 N.E. 812-814; Wheeler v. Lozee, 12 How. Pr. 448.) May charge for witnesses, although not called. (Randall v. Falkner, 41 Cal. 242.) We were entitled to mileage for Smith and Sawyer, at least to jurisdictional line. (Wooster v. Hill, 44 F. 819; Code Civ. Proc., sec. 6039; Burrows v. Kansas City, 54 F. 278; Pivison v. Railroad Co., 54 F. 464.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This is an appeal from an order of the trial judge taxing costs. The plaintiff filed his memorandum of costs, duly verified by his attorney, whereby it was shown that his total necessary costs and disbursements amounted to $ 356.80. Thereafter the defendant (who is the appellant here) moved to tax said costs. Said motion was heard by the judge, and said costs reduced from $ 356.80 to $ 249. From said order taxing costs, this appeal is taken.

The following is an itemized memorandum of the costs as allowed by said order:

Elisor's fees

$ 14 40

Clerk's fees, including stenographer's fees

15 10

Witness fees:

Mrs. Caroline Griffith

9 25

Mrs. Ella Griffith

9 25

Mrs. C. Haile

9 25

Herman Vorberg

9 25

Roy White

9 25

J. O. Swift

9 25

W. H. Watt

9 25

L. Price

9 25

J. S. Whitton

9 25

W. T. Riley

9 25

C. Haile

9 25

C. J. Selwyn

9 25

B. M. Mallory

9 25

Larry Farrell

9 25

Henry Warning

9 25

J. H. Beane

9 25

Charles Berkin

9 25

George Romaine

9 25

E. Daft

6 25

G. Richardson

9 25

C. S. Smith

18 75

G. A. Sawyer

618 75

Total

$ 249 00

Every item of said cost-bill is challenged. The record purports to contain all of the evidence considered on the hearing of the motion to tax costs, and the only evidence contained in the record is the memorandum of costs, with the verification thereto attached, and the affidavit of the appellant. Section 4912 of the Revised Statutes provides that the successful party may present a memorandum of the items of his costs and necessary disbursements, and that such memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of the attorney, stating that, to the best of his knowledge and belief, the items contained in said memorandum are correct, and that the disbursements have been necessarily incurred in the action or proceeding. It further provides that a party dissatisfied with the costs claimed may, within three days after the filing of the bill of costs, file a motion to have the costs taxed by the court in which the judgment was rendered, or by the judge thereof at chambers. The statute does not prescribe the procedure in the hearing of a motion to tax costs, but the hearing is usually had upon such pertinent evidence, by affidavit or otherwise, as either party may offer as to the allowance or disallowance of the items objected to. It appears from the record that this motion was heard upon the memorandum of costs filed by respondent and the affidavit of appellant. Appellant contends that the affidavit attached to the memorandum of costs is made on "the best knowledge and belief of affiant" that the items therein are correct, and that the disbursements have been necessarily incurred, and that, as said affidavit is met by the positive affidavit of appellant setting forth the facts showing that many of said items were not necessarily incurred, said items should not have been allowed without further proof of the fact that they were necessarily incurred. But it is argued by respondent that the affidavits on which the motion to tax costs was heard are conflicting, and that some of the items relate to facts of which the trial court had actual knowledge, and for that reason his ruling should not be disturbed, and cites Fanning v. Leviston, 93 Cal. 186, 28 P. 943, as an authority. That decision is very meager upon the point in question, but it appears that, as the motion to tax costs was heard upon conflicting affidavits, and, further, that some of the items in controversy referred to matters of which the court had actual knowledge, it was held that the ruling of the lower court would not be disturbed. The transcript in the case at bar contains no intimation that the court or judge took into consideration any facts of which he had actual knowledge in his decision in this case, and the record negatives that idea. It contains the following statement: "On none but the foregoing facts and record the motion to retax costs was heard on July 27, 1893." The record thus shows that it contains all of the evidence considered on the hearing of such motion, and it cannot be presumed that the judge took into consideration certain facts of which he had actual knowledge in the decision of said motion. Courts must take judicial knowledge of certain facts, but we are not aware of any law that requires them to take judicial notice of the fact whether a certain witness was present at the trial, or the number of days present. If a court or judge has actual knowledge of a fact which he takes into consideration in the taxation of costs, and an appeal is taken from his decision, if the record does not contain the fact of which the court did take notice, this court cannot consider it. We can only consider the evidence contained in the record.

A proper disposition of this case will require an examination of the items of said cost-bill.

The appellant objects to the allowance of elisor's fees on the ground that said fees are not chargeable under any law and...