McFarlane v. McFarlane

• Decision Date: 01 February 1904
• Citation: 75 P. 139,43 Or. 477
• Parties: McFARLANE v. McFARLANE.
• Court: Oregon Supreme Court

75 P. 139

43 Or. 477

McFARLANE v. McFARLANE.

Supreme Court of Oregon

February 1, 1904

Action by Elizabeth McFarlane against A. McFarlane. Decree for plaintiff was reversed (73 P. 203), and she now moves to strike from the files a statement of costs. Motion allowed.

W.M. Kaiser and Carey F. Martin, for the motion.

P.H D'Arcy, opposed.

MOORE C.J.

This is a motion to tax costs and disbursements. A supplemental decree herein having been reversed July 27 1903, the defendant, on December 9th of that year, filed a statement of his costs and disbursements, serving a copy thereof on plaintiff's counsel, who moved to strike it from the files, on the ground that it was not placed thereon within the time prescribed. The clerk having allowed the several items as claimed, plaintiff's counsel contend that an error was thereby committed. The statute prescribing the manner of taxing costs and disbursements was amended by an act approved February 24, 1903, prohibiting the recovery thereof unless the prevailing party to a judgment, decree, or special proceeding, within five days from the rendition thereof, serves on the adverse party entitled to notice an itemized statement of the sums to which he claims to be entitled. Such statement may be filed, however, at any time after the period prescribed, but not later than the first day of the next regular term of the court occurring after the expiration of the first five days, in which case the statement must be served on the adverse party, though he has not appeared. If objections thereto are filed within five days from the expiration of the time allowed to file the cost bill, such statement and objections shall constitute the only pleadings required, and the issue so joined shall be tried as soon as convenient by the court or judge, and from the judgment rendered thereon an appeal may be taken. Laws 1903 p. 209. Though this statute was evidently designed to regulate the mode to be pursued in taxing costs and disbursements in the circuit courts, the rule prescribed ought to be adopted as far as applicable in this court. Rader v. Barr, 37 Or. 453, 61 P. 1027, 1127.

It will be remembered that the cost bill was filed December 9, 1903 but as an excuse for the delay it is maintained by defendant's counsel that a petition for a rehearing was pending until October 5th of that year, and until that was overruled no final decree had been rendered, and for this reason the statement was filed within the time prescribed. In Hammer v. Downing...