De Vall v. De Vall

• Decision Date: 13 September 1910
• Citation: 110 P. 705,57 Or. 128
• Parties: DE VALL v. DE VALL.
• Court: Oregon Supreme Court

110 P. 705

57 Or. 128

DE VALL v. DE VALL.

Supreme Court of Oregon

September 13, 1910

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

Action by Beatrice De Vall against Thomas De Vall. Judgment for defendant was reversed on appeal, and items of plaintiff's bill of costs were disallowed, whereupon he moved to retax costs. Motion denied.

See also, 109 P. 755.

Thomas M. Dill, for appellant.

A.S Cooley, for respondent.

MOORE C.J.

This is a motion to retax costs. The judgment herein was reversed whereupon plaintiff's counsel served and filed a cost bill, containing, inter alia, the following items: "to stenographer's fee, $9.00; to bill of exceptions original copy, 120 folios, $12.00; to transcript for Supreme Court, 234 folios, $23.40." Our clerk disallowed these charges, and to review his action in that particular this motion was interposed.

Considering the several demands in their order, it is settled that in a law action the sums of money paid by a party to the official reporter as his legal fees must be taxed in the lower court and cannot be entered here as a disbursement. Sommer v. Compton, 53 Or. 341, 344, 100 P. 289; McGee v. Beckley, 54 Or. 250, 255,^[1] 103 P. 61. When a transcript of the testimony has been filed in the lower court, it is incumbent upon the appellant, if he desires to review the judgment, to prepare a bill of exceptions for settlement and allowance by the judge, and the expenses incident to the clerical work form no part of the disbursements on appeal. Ferguson v. Byers, 40 Or. 468, 477, 67 P. 1115, 69 P. 32; Allen v. Standard Box & Lumber Co., 53 Or. 10, 19, 96 P. 1109, 97 P. 555, 98 P. 509.

It satisfactorily appears that plaintiff's counsel personally prepared the transcript on appeal, to which the clerk appended his certificate, and for which the sum of $1 was paid, and that no other liability was incurred on account thereof. It is only such legal charges as have been paid or promised to the clerk for the labor necessitated in preparing a transcript on appeal that may be recovered as a disbursement. No sum of money was paid to that officer except $1, and that item appears in the cost bill. If plaintiff's counsel undertook the work on his own account, all expenses thereby saved, in case he were defeated, inure to the benefit of the adverse party.

The items referred to were properly rejected, and the action of the clerk is approved.

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