Cross v. Chichester

4 Or. 114 | Or. | 1871

By the Court,

Upton, J.:

It appears from the transcript that the defendant filed with the Clerk, under § 546 of the Practice Act, a statement of his disbursements, the items of which were for witnesses’ fees, in which he specified the name of each witness and the amount of the disbursement, setting out each item in the following form:

“----, - days, - miles, $----,” giving the name of the witness, the number of days, the number of miles, and the amount claimed for each witness. The statement was verified.

The appellant filed the following objections:

“1st. It does not appear from said bill of disbursements or the affidavit thereto, that the persons therein named as witnesses actually and necessarily traveled the number of miles charged therein, or that they all or any of them actually attended the Court the number of days charged, as witnesses only.

“ 2d. It does not appear from said bill of disbursements that the defendant has paid, or is liable to pay to the persons named as witnesses, the amount therein charged.

“3d. It does not appear from said bill of disbursements that the said witnesses, or any of them, were material for the defense of this action; that they or either of them were sworn and examined in the trial.”

The respondent filed an amended verification to the bill of disbursements, whereupon the Clerk made an order allowing the bill, and the Circuit Court affirmed the order.

The only points it is necessary to consider in reviewing the decision of the Circuit Court, are whether the original statement of disbursements filed by the respondent, and its verification, were in compliance with \ 546 of the Practice Act in the first instance, and whether the objections filed by the appellant “ state the particulars of such objections” within the meaning of that section, as construed in the cases of Crawford v. Abraham, (2 Oregon, 163), and Wilson v. City of Salem (3 Oregon, 482), so as to make it obligatory on the respondent to file an “ amended verified statement.”

We think the original statement sufficient in the first instance; that is, it is such that if not objected to, it would have justified the Clerk in taxing the costs therein mentioned.

Where a disbursement is made to a witness, or incurred by calling him into Court and thus becoming liable to pay him, a statement of that disbursement is sufficiently explicit if it gives the name of the witness, the number of days he has attended the Court, the number of miles he has traveled, and the amount of money he has become entitled to receive. And its verification is “as specific and formal as the verification to a pleading,” and is sufficient if the party deposes that the items of the bill or statement are correct, as the deponent verily believes, and that the liability has been necessarily incurred. But we are of opinion that the objections filed by the appellant do not comply with the requirements of the practice, as established in the cases above cited.

When we compare the objections filed by the appellant in this case with .those suggested by Judge Wilson in Wilson v. City of Salem, we find a marked difference. The latter specifies the particulars of the objection as follows: “0. D. did not attend as a witness only, but was a juror.” The language of the objection in this case is, “ It does not appear from said bill of disbursements or the affidavit thereto, that the persons therein named as witnesses * * * actually attended Court the number of days charged, as witnesses only.” The one presents an issuable fact in regard to the disbursement, and renders it necessary that the adverse party admit the truth by his silence, or deny the allegation by his oath. The other alleges no fact, but merely raises an issue of law as to the sufficiency of the original cost-bill.

If any one of these witnesses did not travel the number of miles charged, the objection should have named the witness, and should have stated that he did not travel as alleged. If the witness came on other business and did not travel or attend Court as a witness, the objection should state the fact. Such specification would point out at once what additional fact ought to be -set out by affidavit, and would oblige the party claiming costs to file what has been called an “amended verification” or “an amended verified statement.” In other words, an affidavit containing material facts, which are not shown in the original statement and which meet and traverse or avoid the particular matter specified in the objection, so as to put the Court in possession of all the material “facts necessary to show the justness of the claim.”

The appellant has objected to the sufficiency of the bill filed, but not to any item or claim, according to the meaning and intent of the rule as laid down in the cases above cited. In those cases it was held that, “if this is not done, the objection may be passed without notice and all items not objected to are supposed to be admitted.”

The objections filed by the appellant seem to have been drawn up under the impression that, for the purpose of taxing costs, the papers to be filed must set out the facts which show the party to be entitled to recover as fully as a complaint sets out the facts that constitute a cause of action. Such is not the construction of the statute intended to be expressed in the opinions above cited. It is true Judge Wilson says: “Each item should be briefly but particularly set forth, just as in a complaint each cause of action must be specifically set forth and must of itself show a right to recover.” This I understand to assert that each item must be stated separately so as to be distinguishable from all others, as each cause of action must be stated separately in a complaint, but as these papers do not necessarily constitute a judgment-roll or make up a record of what was the subject of the litigation as do the pleadings, there is not, in taxing costs, a necessity for the same kind of statement in all particulars that there would be in a complaint filed in an action to recover the same money that is here claimed.

In passing upon the cases above cited, the Court endeavored to fix upon a convenient mode of practice. The intention of the Court was not to assimilate this proceeding to the trial of a cause, but, on the contrary, to make the business of taxing costs as simple as is compatible with correctness and certainty. To this end the Court provided by rule that no affidavit should be filed, except by the party claiming tbe costs or disbursements. The practice which the Court has endeavored to establish requires, in the first place, simply, a cost bill or statement of disbursements, which must state the items separately, specifying the amount of each item, and for what it is incurred, and must be verified. If any part of it is objected to, the objection need not be on oath, but it must point out particularly in what respect the claim presented is wrong or unfounded.

As to any particular fact thus pointed out, the party who claims the item must state, on his oath, such additional facts, not stated in the original bill, as to present the truth in regard to the particular point specified in the objection, so that the Clerk, or the Court, by inspecting the original bill or statement, and the additional affidavit, sometimes called the “amended verified statement,” can be informed of the truth of the matter pointed out in the objection. This is our understanding of the practice established by the cases above cited. We think the objections filed in this case are too general, and that they do not point out any particular respect in which the claim is unfounded, and that no additional verification was rendered necessary.

The judgment of the Circuit Court should be affirmed.