In re Pittock's Estate

• Decision Date: 22 November 1921
• Citation: 202 P. 216,102 Or. 159
• Parties: In re PITTOCK'S ESTATE. v. PRICE et al. LEADBETTER
• Court: Oregon Supreme Court

202 P. 216

102 Or. 159

In re PITTOCK'S ESTATE.

LEADBETTER v. PRICE et al.

Supreme Court of Oregon

November 22, 1921

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

In the matter of the Estate of Henry L. Pittock, deceased. Proceedings by Caroline P. Leadbetter to contest will against O.L. Price, executor, and others. Will established. On motion of proponents to retax costs. Motion allowed.

See also, 199 P. 633; 201 P. 428.

John F. Logan, D.P. Price, and Carey & Kerr, all of Portland, for the motion.

Cake &amp Cake and L.A. Liljeqvist, all of Portland, opposed.

BURNETT, C.J.

The decree of the circuit court establishing the will of Henry L Pittock, deceased, against the attack of the contestant, Caroline P. Leadbetter, was affirmed in an opinion of this court handed down July 26, 1921. The mandate has not yet been issued to the circuit court.

On September 8, 1921, the executors of the will filed their cost bill and statement of disbursements, containing the following items: Filing fee, $10, attorneys' fee, $10, and cost of printing respondents' brief, $314.20; total, $334.20. Service of this bill was made on the contestant on September 7, 1921, as appears by the acceptance attached thereto conditioned that it was "without waiver of the rights of appellant to object that the same has not been served or filed within the time provided by law." On September 10 the contestant filed her opposition to the cost bill mentioned and to each of the items contained therein, and as grounds therefor objected "against any order by this court or the clerk thereof to tax any costs in the above-entitled cause against said contestant and appellant, for the reason that the respondents have not served or filed any cost bill herein within the time required by law and the rules of the Supreme Court." The clerk allowed statutory costs in the sum of $25, rejecting the item charged for printing the brief.

In a paper styled "Motion to Retax Costs," the respondents "ask that the cost bill in this case be retaxed, and that the disbursement of the respondents, $314.20, for cost of printing respondents' brief, be allowed as an item of costs and disbursements herein."

As to the right to allow costs and disbursements at all, the principle is thus laid down in 15 C.J. 21:

"At common law costs were not recoverable eo nomine. If plaintiff failed, he was punished by amercement for false clamor, and defendant, where the judgment was against him, in misericordia cum expensis litis. Costs can therefore be imposed and recovered only in cases where there is statutory authority therefor, and where the party claiming costs comes within the operation of the statutory provision relating to costs. The courts have no power to adjudge costs as against any one on mere equitable or moral grounds.

"While the power to impose costs must ultimately be found in some statute, the Legislature may nevertheless grant the power in general terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed; but the courts cannot make such rules or orders and impose costs thereunder, unless the power so to do is expressly given them by statute, or ratified by legislative enactment."

The text is supported by a great wealth of authority in precedents too numerous to be cited here, except two from our own state. As said by this court in Wood v. Fitzgerald, 3 Or. 568, 583:

"All the authorities concur in declaring the right to recover costs to be purely statutory. No such right existed at common law. The authority to tax costs and disbursements eo nomine in favor of the prevailing party in the English courts is found in the statute of Gloucester, 6 Edward I, c. 1, and in the statutes, 23 Henry VIII, c. 15; 4 James I, c. 3; 8 and 9 William III, c. II; and 4 and 5 Anne, c. 16; and the various amendments thereto. In this state, the right to recover costs is given by the Code; the provisions in relation thereto being in principle and effect similar to the English statutes named. * * *

"From the application of the rules of construction just referred to, it follows that unless a party is allowed costs he cannot recover disbursements. For the recovery of disbursements is made dependent upon the recovery of costs by the statute."

The principle is thus stated in State ex rel. v. Estes, 34 Or. 196, 213, 55 P. 25, 28:

"The expenses incident to the trial of an action not being recoverable at common law the right to recover them must be found in the statute."

The original statute on costs and disbursements is found in title 5, c. 6 of the Civil Code, adopted by the Legislative Assembly in 1862, and which went into effect June 1, 1863 (Deady's Gen. Laws 1845-1864, p. 286). Digressing briefly, it is proper to differentiate between "costs" and "disbursements." Costs are certain sums to be allowed to the prevailing party in the judgment or decree, by way of indemnity for his attorney's fee in maintaining the action or suit or defense thereto. Or.L. § 561. Disbursements, on the other hand, are the necessary expenses connected with the prosecution or defense of the litigation. Or.L. § 566. Costs are fixed by section 565, Or.L. It may be remarked that to a large extent, both in the opinions of this court and in briefs, and other documents emanating from the bar, the distinction between "costs" and "disbursements" has not always been observed, but the fact is that the two are entirely distinct; costs being fixed in amount as a conclusion of law, while disbursements vary according to the actual expenditures in the litigation, and mainly involve questions of fact. The schedule provided for costs in section 565, Or.L., is as follows, among other things: "(1) In the Supreme Court, on an appeal, to the prevailing party, $15." As it affects the question before us, the original Code on this subject has remained intact without amendment to the present time, except as to sections 546 and 547 of that compilation, which were amended by the act of February 24, 1903 (Laws 1903, p. 209). In their changed form these sections read as follows:

"Costs and disbursements shall be taxed and allowed by the court or judge thereof in which the action, suit, or proceeding is pending. No disbursements shall be allowed to any party, unless he shall serve on such adverse party or parties as are entitled to notice by law, or rule of the court, and file with the clerk of such court within five days after the rendition of the judgment or decree, a statement, with proof of service thereof, if notice to the adverse party is required, indorsed thereon or attached, showing, with reasonable certainty, the items of all disbursements, including fees of officers and the number of miles of travel and number of days' attendance claimed for each witness, if any, which statement must be verified, except as to fees of officers. Such statement of disbursements may be filed with the clerk at any time after said five days, but not later than the first day of the next regular term of the court occurring after the expiration of said five days; but in such case, such statement must be served on the adverse party or parties whether he or they shall have appeared or not. 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 entered as of course by the clerk as a part of the judgment or decree in favor of the party entitled to costs and disbursements, unless the adverse party within five days from the expiration of the time allowed to file such statement shall file his objections thereto, stating the particulars of such objections, which objections must also be verified. Questions of law and of fact, denials of any or all of the items charged in the statement, and allegations of new matter, may be joined and included in the objections, and each and all of these shall be deemed controverted and denied by the party filing the statement without filing any further pleading. The statement of disbursements, and the objections thereto, constitute the only pleadings required on the question of taxation and allowance of costs and disbursements, and they shall be subject to the right of amendment like pleadings in other cases." Section 569, Or.L.

"As soon as convenient after objections are filed against a statement of disbursements, the court, or judge thereof, in which the action, suit, or proceeding is pending, shall without a jury, proceed to hear and determine all the issues involved by the statement and objections as to costs and disbursements. At such hearing the court or judge may examine any record or paper on file in the cause, and either party may produce relevant or competent testimony, either orally or by deposition, or otherwise, to sustain the issues on his behalf. Either party may except to the ruling of the court or judge upon any question of law made at such hearing, and the same shall be embodied in a bill of exceptions, as in other cases. As soon as convenient after the hearing, the court or judge thereof shall make and file with the clerk of the court a correct itemized statement of the costs and disbursements as allowed by the court or judge, and shall render judgment thereon accordingly for the party in whose favor the same are allowed; and no other finding or conclusion of law or fact shall be necessary, and the same shall be final and conclusive as to all questions of fact. The issues arising on the statement of disbursements, and the objections thereto, shall be heard and determined by the court or judge without either party recovering further costs or disbursements from the other, except that in the discretion of the court, or...