State Acting By and Through Oregon State Bd. of Higher Ed. v. Cummings

• Decision Date: 03 November 1955
• Citation: 205 Or. 500,289 P.2d 1083
• Parties: STATE of Oregon, ACTING BY AND THROUGH the OREGON STATE BOARD OF HIGHER EDUCATION, for and on behalf of the Oregon State Library, substituted for Newton E. Carbaugh, Executor and Dorothy P. Carbaugh, Executrix of the Estate of Mary Elizabeth Forbes Burrell, deceased, Respondent, v. Charles K. CUMMINGS, Appellant.
• Court: Oregon Supreme Court

Page 1083

289 P.2d 1083

205 Or. 500

STATE of Oregon, ACTING BY AND THROUGH the OREGON STATE BOARD OF HIGHER EDUCATION, for and on behalf of the Oregon State Library, substituted for Newton E. Carbaugh, Executor and Dorothy P. Carbaugh, Executrix of the Estate of Mary Elizabeth Forbes Burrell, deceased, Respondent, v. Charles K. CUMMINGS, Appellant.

Supreme Court of Oregon, En Banc.

Nov. 3, 1955.

Lloyd G. Hammel, Asst. Atty. Gen., for objections.

Maurice C. Corcoran, Portland, contra.

ROSSMAN, Justice.

This matter is before us upon objections made by the state to a bill of costs and disbursements totaling $226.40, filed by the successful appellant.

In explanation of the objections, the Attorney General states:

'* * * The state was merely the object of a possible testamentary gift and was not a party to and had no notice or knowledge of the proceedings in the trial court; the probate court of Multnomah County granted a decree of distribution at a time when this appeal was pending resulting in the substitution of the State Board of Higher Education as the party respondent; the state has no objections to or interest in the assessing of costs against the estate of the decedent, but it is understood that the estate has been closed.'

The challenged bill of costs and disbursements is composed of items of expense incurred upon appeal only.

The legislature has rendered the state subject to the taxation of costs and disbursements. ORS 20.130. In view of the fact that ORS 20.310 speaks of 'the prevailing party' in providing for the taxation of costs and disbursements upon appeal, this court has held that those items are generally awarded in law actions to the prevailing party. McKinney v. Nayberger, 138 Or. 203, 295 P. 474, 2 P.2d 1111, 6 P.2d 228, 229. When an out and out reversal or affirmance takes place, it is not difficult to ascertain which of the parties is the prevailing one, but the problem is not always simple when a modification occurs. In dealing with a situation of that kind, Stabler v. Melvin, 89 Or. 226, 173 P. 896, reached out for and accepted the aid of Art. VII, section 3, Constitution of Oregon. It held that, upon a modification of a judgment, the award of costs and disbursements is subject to the discretion of this court. In Levine v. Levine, 95 Or. 94, 187 P. 609, 616, the court said:

'Although this is an action at law, and the appeal has resulted in a reversal, nevertheless, for the same reason that was given in Rowe v. Rowe, 76 Or. 491, 497, 149 P. 533, and on the authority of Stabler v. Melvin, 89 Or. 226, 232, 173 P. 896, we do not allow the defendant a judgment for costs and disbursements, and therefore neither party shall have judgment for costs. * * *'

Patterson v. Horsefly Irrigation District, 157 Or. 1, 69 P.2d 282, 70 P.2d 36, reviewed carefully the previous decisions of this court upon the problem of taxing costs in law actions where modifications or reversals occurred upon appeal. It referred, with approval, to McKinney v. Nayberger, 138 Or. 203, 295 P. 474, 2 P.2d 1111, 6 P.2d 228, 229, which declared...