Purvis v. Kroner

• Citation: 23 P. 260,18 Or. 414
• Parties: PURVIS v. KRONER.
• Decision Date: 11 February 1890
• Court: Supreme Court of Oregon

23 P. 260

18 Or. 414

PURVIS v. KRONER.

Supreme Court of Oregon

February 11, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

The only question in this case is, which party is entitled to costs? A brief statement of the issues is therefore necessary. The complaint alleges, in substance, that at the defendant's request the plaintiff performed work and labor for the defendant of the reasonable value of $325.50 and that the defendant paid no part thereof, except the sum of $242.55; that the plaintiff furnished board for the defendant, which was reasonably worth $54, no part of which had been paid; and prayed judgment for $136.95. The answer denied specifically plaintiff's allegations, except as thereinafter alleged, and then admitted that plaintiff performed labor for the defendant to the value and amount of $195, and admits the item of board to the amount of $52. The answer then alleges that defendant had paid the plaintiff in money and merchandise, for and on account of said labor and board, $248.50, and demanded judgment for $460, amount due defendant. The reply denies payment in any greater amount than as alleged in the complaint. The cause was referred to C.H. Carey, as referee, to take the evidence, and find the facts and conclusions of law, who found that the plaintiff was entitled to recover of the defendant the sum of $18.90. For this amount judgment was duly entered in favor of the plaintiff, together with costs and disbursements of the action. This judgment was entered June 29, 1889. On July 2 1889, the defendant filed with the clerk his cost-bill; and on the 3d day of July, 1889, the plaintiff filed with the clerk his cost-bill; and on July 12, 1889, the clerk allowed and taxed the defendant's bill of costs and disbursements, from which decision the plaintiff appealed to the court. Upon that appeal the court reversed the clerk's allowance and taxation, from which the defendant has appealed to this court. After this appeal was perfected and pending the argument, it was discovered that by some oversight the original judgment awarding costs to the plaintiff had not been appealed from, and that the question which the appellant was really desirous of litigating was not, therefore, before this court. Accordingly an appeal was then perfected from the original judgment, and, by stipulation between the parties, the questions in regard to costs presented by the entire record are submitted for our determination.

(Syllabus by the Court.)

On an appeal from the clerk's taxation of costs, the original judgment awarding costs to the prevailing party can neither be attacked nor reviewed. The only questions on such appeals are the items or amounts to be taxed.

. Costs are allowed to the plaintiff of course upon a judgment in his favor in an action involving an open mutual account, where it appears to the satisfaction of the court that the sum total of such accounts of both parties exceeds $150.

An open account is one in which some item of the contract is not settled by the parties, whether the account consist of one item or many; or where there have been running or current dealings between the parties, and the account is kept open with the expectation of further dealings.

Mutual accounts are those having original charges by persons against each other.

E.O. Doud, for appellant.

W.L. Nutting, for respondent.

STRAHAN, J., (after stating the facts as above.)

Upon an appeal from the clerk's taxation of costs, the original judgment, awarding costs and disbursements, can be neither attacked nor reversed. The only questions arising on such appeal are the items or amounts to be taxed and allowed. The judgment in the case has already concluded the question as to which party is entitled to costs, by awarding the same to the party entitled according to the facts of the case, and the clerk in the taxation or settlement of the amount has nothing whatever to do with the other question. That question was for the court, and is settled by the judgment. Such was the effect of the decision of this court in Burt v. Ambrose, 11 Or. 26, 4 P. 465. This view of the subject renders an examination of the question attempted to be raised on the appeal from the clerk's taxation entirely unnecessary, for the reason that the appellant's contention lies back of that. What he really complains of is that the judgment awarding costs to the plaintiff is erroneous, and that, under the facts disclosed by this record, the defendant was entitled to costs of course; and to that question our attention will be directed.

"Costs are allowed of course to the plaintiff upon a judgment in his favor in the following cases: *** (3) In an action involving...