Rader v. Barr

• Decision Date: 30 July 1900
• Citation: 61 P. 1027,37 Or. 453
• Parties: RADER v. BARR. [1]
• Court: Oregon Supreme Court

61 P. 1027

37 Or. 453

RADER v. BARR. ^[1]

Supreme Court of Oregon

July 30, 1900

Appeal from circuit court, Grant county; M.D. Clifford, Judge.

Suit by George Rader against Emmet Barr to restrain collection of a judgment. From a decree dismissing the suit on demurrer plaintiff appeals. Reversed as to the dismissal of the suit and affirmed as to the sustaining of the demurrer.

This is a suit to enjoin the collection in part of a judgment rendered for costs and disbursements by this court August 13 1898, in favor of Emmet Barr as respondent and against George Rader as appellant, for $215.85.54 P. 210. The allegations of the complaint are, in substance, as follows: That in the case of Emmet Barr (respondent) v. George Rader (appellant) a judgment was rendered in favor of the respondent by the supreme court of the state of Oregon at its Pendleton May term for the year 1898. That thereafter, to wit, on September 5, 1898, the respondent filed a cost bill therein, composed of the following items:

                            Printing brief 
                          
                            $ 39 00
                          
                            Cost of transcript ...............................
                          
                            139 00
                          
                            Clerk's fee, $40.00; paid on this, $_____; due ....
                          
                            22 85
                          
                            Costs .............................................
                          
                            15 00
                          
                            
                          
                            -------
                          
                            
                          
                            $215 85
                          
                

--That the item, "cost of transcript" was wrongfully and fraudulently inserted in said cost bill by the respondent or his attorneys. That the same was paid by the appellant before the cost bill was filed, and that therefore it should not have been included therein. That the clerk's fees upon the appeal were $22.85, and no more. That of said amount the appellant paid $10 prior to the rendition of judgment, and that at the time of filing said cost bill there was due for clerk fees $12.85, and no more. That no objections were filed to said cost bill by the appellant within the time prescribed by law, and that the total amount thereof, to wit, $215.85, was allowed and taxed by the clerk. That the Pendleton May term of said court adjourned for the term on August 13, 1898. That on October 13, 1898, by virtue of the mandate from the supreme court, a judgment was entered in the circuit court for Grant county in favor of Barr and against Rader for the sum of $215.85, the full amount of said cost bill. That neither Rader nor any of his attorneys knew, nor were any of them informed, of the said wrongful and fraudulent charges contained in said cost bill until after the supreme court had adjourned for the term and the entry of the judgment in the circuit court. The prayer is that the judgment be set aside as to said items, that defendant be enjoined from enforcing the collection thereof, and for general relief. A motion to strike from the complaint the words "wrongfully and fraudulently" and "wrongful and fraudulent" being sustained, a demurrer was interposed upon the ground that the complaint does not state facts sufficient upon which to base equitable relief, which was also sustained, and a decree rendered dismissing the suit, from which plaintiff appeals.

S.A. Newberry, for appellant.

C.H. Carter, for respondent.

WOLVERTON J. (after stating the facts).

The sole question presented is whether the complaint states facts sufficient to entitle the plaintiff to the relief prayed for. The incident of the filing and allowance of the motion to strike out is not material to the inquiry, and will not receive further notice. In order that the nature of the controversy may be made clear, a brief reference will be made to the manner of recovering costs and disbursements, and having the same taxed, so as to entitle them to be entered as a part of the judgment or decree. Costs are certain sums allowed the prevailing party by way of indemnity for his attorney fees in the suit or action, and disbursements comprise such expenditures as are necessary to maintain or defend the same, and include fees of officers and witnesses, the necessary expense of taking depositions, the publication of summons or notices, outlays for postage compensation of referees, and the necessary expense of copying records, etc., used as evidence at the trial. Every witness, officer, or other person required to do or perform any act or service for any party to an action or suit is entitled to demand and receive his compensation in advance; but the party may pay the fees of officers, or give an undertaking therefor, at his option. Costs and disbursements are allowed by the clerk; but no disbursements can be allowed unless the party claiming them shall have filed with the clerk, within five days from the entry of the judgment or decree, a statement of the same, which shall be verified except as to fees of officers. Such statement may be filed, however, at any time after five days; but in such case a copy thereof must be served upon the opposite party. A statement of disbursements thus filed must be allowed, of course, unless the adverse party, within two days from the time allowed to file the same, shall file his objections thereto, stating the particulars thereof. When objections are preferred, provisions are made for filing an amended verified statement, and an allowance or disallowance by the clerk of the charges claimed. Hill's Ann.Laws Or. §§ 548, 553, 555-557; Nicklin v. Robertson, 28 Or. 278, 42 P. 993.

The item of $15 in the statement contained in the...