Portland & O. C. Ry. Co. v. Doyle

• Decision Date: 11 September 1917
• Citation: 167 P. 270,86 Or. 206
• Parties: PORTLAND & O. C. RY. CO. v. DOYLE ET AL. [*]
• Court: Oregon Supreme Court

167 P. 270

86 Or. 206

PORTLAND & O. C. RY. CO. v. DOYLE ET AL. ^[*]

Supreme Court of Oregon

September 11, 1917

In Banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by the Portland & Oregon City Railway Company against J. W Doyle and others. There was a judgment of nonsuit, from which defendants appeal; their motion for entry of judgment for costs being in part denied. Appeal dismissed.

J. N Hart, of Portland, for the motion. F. D. Chamberlain, of Portland, opposed.

BENSON, J.

Plaintiff began this action to condemn real property for railroad purposes. Upon the trial the court excluded certain evidence offered by plaintiff, which was deemed vital to the case whereupon plaintiff asked for a voluntary nonsuit, which was granted by the court without objection from defendants. The entry of such judgment was made on February 23, 1917; such entry being silent as to costs and disbursements. On February 27, 1917, defendants filed a motion asking judgment for their costs and disbursements, including the attorney fee provided in chapter 49, p. 81, Laws 1913. A hearing was had upon the motion, and on April 13th the court entered a judgment in favor of defendants for their costs and disbursements, with the exception of the attorney fee. On the 18th day of April 1917, defendants filed their notice of appeal, which sets out the original judgment entry of February 23d in full, and concludes as follows "Said defendants appeal from so much of said order and judgment as fails to give defendants their costs, disbursements, and the statutory attorney fee provided for in section 6868, Lord's Oregon Laws, as amended by Session Laws of the State of Oregon for 1913, p. 81; and defendants further appeal from so much of said order as provides for dismissal of said action without prejudice."

It will be observed that the appeal is not taken from the supplemental judgment for costs and disbursements, but from the original judgment entry of February 23d. If defendants were not satisfied with the judgment subsequently entered for costs and disbursements, they should have appealed from that order. The attorney fee for which defendants contend is made a part of the costs and disbursements by the statute, and, since that subject is not presented by this appeal, it cannot be considered.

The other portion of the judgment appealed from is the statement in the judgment entry that the dismissal of...