143 P. 995 | Or. | 1914
delivered the opinion of the court.
This is a suit for divorce, etc. The plaintiff asks for a divorce on the ground of desertion. The defendant denies the desertion, and prays that she may he granted a divorce and one third of certain real property belonging to the plaintiff, on the ground of alleged cruel and inhuman treatment of her by the plaintiff.
The parties were married at Polo, Illinois, on August 25, 1880, 34 years ago, and they have resided in Coos County about 23 years. They are past middle age and have grandchildren old enough to be in school. They resided in Baker County before going to Coos County. This suit was commenced on May 12, 1913. The parties lived together as husband and wife until about August 25, 1910, at which time the plaintiff contends that the defendant wrongfully and willfully deserted him. It is certain that the defendant separated from him at that time, and she has not lived with him as his wife since.
The complaint charges desertion in proper form. The answer denies the desertion, and sets up a counterclaim for divorce on the ground of cruel and inhuman treatment. The new matter of the answer is denied by the reply. The answer described certain lands belonging to the plaintiff, and alleges that they are worth not less than $10,000, and that they are encumbered by mortgage for the sum of $2,100, and asks that she be given an undivided one third of said lands in fee simple, in addition to a divorce.
The court, below, after hearing the evidence offered by the parties, made findings and rendered a decree against the plaintiff and in favor of the defendant, but required the defendant to pay the costs and disburse-
No questions arise on the pleadings, and hence it is not necessary to set out the allegations thereof. "We have read and considered carefully the evidence and the arguments for the respective parties, and the law bearing upon the case. It is clear from the evidence that the defendant was guilty of desertion, unless the treatment of her by the plaintiff was of such a character as to justify her in separating from him and refusing to live with him as his wife. We think that it would subserve no good purpose to spread upon the record a statement of the material evidence. It will be sufficient to state our conclusions from the evidence.
According to the evidence there was a large amount of argument and quarreling between the parties, and this resulted in hot words and the calling- of opprobrious names and the making of accusations of supposed misconduct. We, of course, cannot know what the true facts are as to the conduct of the parties toward each other. We are constrained to determine the matters according to the weight of the evidence given. The case is a sad one, and we regret to have to decide it. In cases of this kind, the children sometimes take sides, and, without intending to be untruthful, so color their evidence as to magnify greatly the faults of the parent against whom they testify. But courts can decide only in favor of the party on whose side evidence preponderates. In this case, the weight of the evidence is in favor of the defendant, and it shows that the defendant did not willfully desert the plaintiff, but that she had what appears from the evidence to have been a lawful reason for separating from him, and hence we hold that the plaintiff is not entitled to a decree of divorce.
“Notice is hereby given that the appellant, Fred N. Perkins, hereby appeals to the Supreme Court of the State of Oregon from that part of the order and decree of the above-entitled Circuit Court, made and entered on the 20th day of October, 1913, in the above-entitled cause, dismissing plaintiff’s complaint and granting defendant a decree of divorce at the prayer of her cross-complaint and decreeing her to be the owner of a one-third interest in the real estate of plaintiff.”
“The statement of disbursements and the objections thereto constitute the only pleadings required on the question of taxation and allowance of costs and disbursements, and they shall be subject to the right of amendment like pleadings in other cases.”
Section 570, L. O. L., is as follows:
“As soon as convenient after objections are filed against a statement of disbursements, the court, or judge thereof, in which the * * suit * * is pending, shall, without a jury, proceed to hear and determine all*309 the issues involved hy the statement and objections as to costs and disbursements. At such hearing the court or judge may examine any record or paper on file in the cause, and either party may produce relevant or competent testimony, either orally or by deposition, or otherwise, to sustain the issues on his behalf. Either party may except to the ruling of the court or judge upon any question of law made at such hearing, and the same shall be embodied in a bill of exceptions, as in other cases. As soon as convenient after the hearing, the court or judge thereof shall make and file with the clerk of the court a correct itemized statement of the costs and disbursements as allowed by the court or judge, and shall render judgment thereon accordingly for the party in whose favor the same are allowed; and no other finding or conclusion of law or fact shall be necessary, and the same shall be final and conclusive as to all questions of fact. * * An appeal may be taken from the decision and judgment of the court, or judge thereof, on the allowance and taxation of costs and disbursements on questions of law only as in other cases, and on such appeal the statement of disbursements, the objections thereto, the statement of costs and disbursements as filed by the court or judge, the judgment or decree rendered thereon, and the bill of exceptions, if any, shall constitute the judgment-roll.”
This section as it now is was passed by the legislature in 1903: See Laws 1903, pp. 209, 210. It materially changed the practice in the taxation of costs and disbursements. Under the law as it now stands, proceedings for the taxation of costs and disbursements constitute a proceeding of itself. The cost bill and the objections thereto constitute the pleadings. A bill of exceptions is provided for, and the cost bill, the objections thereto, the statement of costs and disbursements as filed and allowed by the court or judge, the judgment or decree rendered thereon and the bill of exceptions, if there be one, constitute the judgment-roll.
It seems clear to us that, where objections are filed to cost bills and either party desires to appeal from the decision of the court or judge thereon, he must appeal from the judgment or the decree rendered in the proceedings for the taxation of costs, and that, on an appeal from the main judgment or decree in an action or a suit, the decision of the court rendered subsequently in the proceeding for the taxation of costs cannot be reviewed. Of course, if a court in an action at law should render a judgment for costs against the defendant where the law required the judgment to be rendei’ed against the plaintiff, such an error could be corrected on an appeal from that judgment, because such a judgment would be clearly erroneous. But where the court properly renders a judgment or a decree against a party, and a cost bill is filed by the other party, and the person against whom the judgment or the decree is rendered files objections to some or all of the items of the cost bill, and the court or judge hears such objections and renders a judgment or a de
For the reason that the plaintiff did not appeal from the decree rendered in the proceedings for the taxation of costs, we hold that we cannot review the decision of the court below disallowing the two items of disbursements referred to supra.
The decree of the court below is affirmed, except as to that part thereof decreeing to the defendant an undivided one-third part of the west half of the northwest quarter of section 27 in township 29 south, range 14 west, of the Willamette meridian, and the decree as to property recovered by the defendant is so modified as to eliminate therefrom all mention of said parcel of land. In all other respects, said decree is affirmed. Neither party is allowed any costs or disbursements in this court.
This cause is remanded to the court below, with directions to enter a decree in accordance with this opinion.
Modified.