29 Mont. 5 | Mont. | 1903
after stating the case, delivered, the opinion of the court.
The rule is well established by the authorities that where, • under a statute or rule of cour^ a requirement is made that, in order to recover costs; the party claiming them must, within a specified! time, serve upon his adversary and file with the clerk a memorandum of the items thereof, duly verified, such memorandum! is prima facie evidence that the items were necessarily expended, and are properly taxable, unless, as a matter of law, they appear otherwise upon the face. The burden of overcoming this piñma facie case rests upon the adverse party, and the party filing the memorandum is required to furnish further proof only in rebuttal. Hence upon the. trial of a motion to tax costs, if the adverse party does not overturn the prima facie caise made by the verified memorandum, the objection should' be overruled. (Hibbard, v. Tomlinson, 2 Mont. 223; Elliott v. Collins, 6 Idaho; 157, 53 Pac. 453; City and County of San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56; Barnhart v. Kron, 88 Cal. 447, 26 Pac. 210; Colusa Parrot M. & S. Co. v. Anaconda. C. M. Co. (C. C.), 104 Eed. 514; Fitnam’s Tr. Pro. Sec. 669.)
Under the statute (Code of Civil Procedure, Section 1866) all the items called1 in question could properly be taxed, because
Reference is made in the brief of counsel to rulings of the court upon particular parts of the evidence excluded. We shall not attempt to' notice these in detail. What we have already said we deem sufficient to guide the court in another hearing.
The judgment is reversed, and the cause is remanded, with
Reversed and retnanded.