Pugh v. Good
| Decision Date | 07 April 1890 |
| Citation | 23 P. 827,19 Or. 85 |
| Parties | PUGH v. GOOD. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; R.P. BOISE, Judge.
This is an appeal from the taxation of costs. The action was originally commenced in the justice's court for Salem precinct to recover $100 for work and labor alleged to have been done on the brick building situate at the north-west corner of State and Commercial streets, in the city of Salem Or., now occupied by Gibson & Singleton as a drug-store, and for making drawings and specifications therefor, and overseeing and superintending the work thereon, and for altering front of said brick building, and fitting up same for a drug-store, all of which were furnished, rendered, and performed to and for said defendant at his special instance and request, and all of the same was and is of the value of $100; and that said defendant promised and agreed to pay plaintiff said sum therefor. Then follows a statement that the amount is due and unpaid, etc. The answer was a denial. The plaintiff had judgment in the justice's court for the amount claimed, from which an appeal was taken, with the like result. The plaintiff then filed his bill for costs and disbursements of both courts, which amounted to $80.65. The defendant objected to various items thereof, and, the plaintiff having filed his amended verified statement, the entire amount was taxed and allowed by the clerk, and upon appeal from such taxation the court affirmed the same declaring that the "finding and taxation of costs and disbursements by the clerk of the court are legal and correct." From this judgment this appeal is taken.
(Syllabus by the Court.)
When the pleadings present an issue on a material fact, the party having the onus of proof may subpoena witnesses to support the issue on his part, and if such witnesses are not sworn because the adverse party at the trial admits the fact, thus rendering evidence unnecessary, such party, if he recover cots, may tax the fees if such witnesses are disbursements and recover the same of the adverse party.
. If a witness attend upon the trial of a cause, and is not sworn the party causing him to be present cannot recover from the adverse party the expense incurred for such witness, unless some sufficient reason exists which would legally excuse his failure to testify. It must be made to appear that his attendance was necessary at the time, but that by reason of some unforeseen event, or other sufficient cause, his testimony became unnecessary.
A party us bound to assume that the only issues triable in a cause are made by the pleadings, and if he subpoena witnesses to testify to matters outside of such issues, he does so at his peril. In cases where collateral inquiries are permissible a party may bring witnesses to testify in relation to the same but, before he can properly charge as disbursements the expense incurred in procuring the same, he must show that the attendance of such witnesses was necessary. Jackson v. Siglin, 10 Or. 93, approved and followed.
An officer can make no charge for any act performed by him by virtue of his office, unless the legislature has, by some statute, authorized such charge.
By terms of section 2340, Hill's Code, if services be rendered by s sheriff in cases where a constable is authorized to act, in a justice court, for instance, he must charge the fees allowed by law to a constable for the performance of that particular service, and no more.
The law has not specifically provided compensation in a justice's court for the following services, but the compensation provided cover and includes these items: Making copy of summons, certificate and return; making copy of subpoena, certificate and return on same; making copy of notice of appeal; return on same. Nor is a sheriff allowed as a separate item, 10 cents for making his return and subpoena in the circuit court.
George H. Burnett, for appellant.
W.M. Kaiser, for respondent.
STRAHAN, J., (after stating the facts as above.)
A proper disposition of this cause requires an examination of the defendant's objections to the items claimed as disbursements, and whether such items were properly taxable. The items of plaintiff's cost-bill are as follows in the circuit court:
Trial fee
..............................................................
$12 00
Clerk's fees
.............................................................
9 60
Sheriff's fees
..........................................................
19 80
Attorney's fees
..........................................................
5 00
Officers' fees in the trial of said cause in said justice's court, as
follows:
Witness fees in trial of said cause in said justice's court for Salem
precinct, as follows:
W.H. Byrd, 1 day, 2 miles
................................................
1 70
Henry Rogers, 1 day, 2 miles
.............................................
1 70
W.F. Boothby, 1 day, 2 miles
.............................................
1 70
Harry Gibson, 1 day, 2 miles
.............................................
1 70
------
Total
...............................................................
$75 65
The defendant objected to the allowance of plaintiff's claim for mileage and attendance of witnesses on circuit court, as follows:
Harry Gibson, 1 day, 2 miles .....
$2 20
Harry Singleton, 1 day, 2 miles ...
2 20
W.H. Byrd, 1 day, 2 miles .........
2 20
--Because said Gibson and Singleton and Byrd were not necessary or material witnesses in said action, and as to said Byrd and Singleton for the further reason that they were not sworn as witnesses in said circuit court. The defendant also objected to the allowance of plaintiff's claim for mileage and attendance of witnesses on justice's court, as follows:
W.H. Byrd, 1 day, 2 miles .....
$1 70
Henry Rogers, 1 day, 2 miles ...
1 70
Harry Gibson, 1 day, 2 miles ...
1 70
--Because said Byrd, Gibson and Rogers were not necessary or material witnesses in said action, and as to said Rogers for the further reason that he was not sworn as a witness at the trial of said action in the justice's court. The plaintiff essayed to meet defendant's objections to the claim for the witness Rogers by the following statement in his amended verified statements: "Plaintiff alleges that the witness Rogers was necessary and material in the trial of said cause in the justice's court, for the reason that the defendant, by his answer, raised the issue as to whether or not said plaintiff performed the work sued for by plaintiff, and said Rogers was a material witness to show that plaintiff did superintend said work and labor on said drug-store building, but he was not sworn, for the reason that defendant, on the trial of said cause in said justice's court, admitted that plaintiff did said work and labor as alleged." Opposed to the defendant's objections to the other witness fees, both in justice's and circuit courts, the amended verified statement of plaintiff contains the following: ...
To continue reading
Request your trial
-
Green v. Uncle Don's Mobile City
...to the parol evidence rule. Heise et ux. v. Pilot Rock Lbr. Co., 222 Or. 78, 88, 352 P.2d 1072 (1960).2 See, e. g., Pugh v. Good, 19 Or. 85, 23 P. 827 (1890); Lumber Co. v. Garrett, 28 Or. 168, 42 P. 129 (1895); Willis v. Lance, 28 Or. 371, 383, 43 P. 384 (1896).3 Lumber Co. v. Garrett, sup......
-
Griffith v. Montandon
...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. Randall v. Falkner, 41 Cal. 242.) Useless costs will not be allowed. (Sommercamp v. Catlow, 1 ......
-
Wallowa County v. Oakes
... ... enjoined by law must be found in the act conferring it ... Jackson v. Siglin, 10 Or. 93; Pugh v. Good, ... 19 Or. 85, 23 P. 827; Houser v. Umatilla County, 30 ... Or. 486, 49 P. 867. The statute regulates the fees to which a ... ...
-
Baker County v. Benson
... ... prescribed for the performance of his official duties ... Jackson v. Siglin, 10 Or. 93; Pugh v. Good, ... 19 Or. 85, 23 P. 827; Houser v. Umatilla Co., 30 Or ... 486, 49 P. 867. The statute having provided for the payment ... ...