| Or. | Feb 11, 1890
Upon an appeal from the clerk’s taxation of costs, the original judgment awarding costs and disbursements can be neither attacked or reversed. The only questions arising on such appeal are the items or amounts to be taxed and allowed. The judgment in the case has already concluded the question as to which party is entitled to costs, by awarding the same to the party entitled, according to the facts of the case, and the clerk, in the taxation, or settlement of the amount, has nothing whatever to do with the other question. That question was for
Under this provision of the Code and the facts disclosed by this record two questions are presented: (1) Does this action involve an open mutual account; and (2) Does the sum total of such accounts of both parties exceed §150? And first, does this action involve an open mutual account? An open account is one in which some item of the contract is not settled by the parties, whether the account consist of one item or many; or where there have been running or current dealings between the parties and the account is kept open with the expectation of further dealings. Am. & Eng. Ency. of L., vol. 1, p. 109, and cases cited, and the author, at page 108, says that an account is a. list or statement of monetary transactions, such as payments, purchases, sales, debts, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature, e. g., receipts and payments. And “mutual accounts” are those having original charges by persons against each other, accounts kept between merchants. Anderson’s Law Dictionary, Title, Account. So in Green v. Disbrow, 79 N.Y. 1" court="NY" date_filed="1879-11-18" href="https://app.midpage.ai/document/green-v--disbrow-3600655?utm_source=webapp" opinion_id="3600655">79 N. Y. 1, in discussing a similar question the court say: “The evidence is that he directed his son and his wife to take the butter and eggs to the plain
From an inspection of the transcript I have no hesitancy in saying that the accounts between the parties in this case were open; that is, they -were unsettled and unadjusted and that they were mutual. The defendant demanded an itemized statement of the plaintiff’s account, which was furnished and the same accompanies the transcript. It consists of nearly five pages of closely written items of debit and credit. The debit side of the account amounts to §379.50 and the credit side to §242.55, showing a balance in favor of the plaintiff of §136.95. On the-other hand, the plaintiff demanded of the defendant an itemized statement of his account set up in his answer, which also is in the transcript. It consists of three pages of items, and shows a balance in favor of the defendant of §4.60. These accounts cover nearly the same period of time and are in the fullest sense of the word mutual accounts. They show the daily transactions between the parties as they understood them, each making charges against the other and giving credits to the other according to his own view of the transaction. It was the difference which arose in regard to these transactions which caused this litigation. Second, the most casual inspection of the pleadings and the accounts on file show that the sum total of such accounts of both parties exceeds §150, clearly bringing the case within the very words of the statute above quoted. Counsel for appellant seeks to
But it is useless to follow this question further. This case shows that it has been litigated with perhaps unnecessary tenacity, where there was only a small difference between the parties and a large amount of cost unnec-essarily incurred; but this court has no power to aid the parties. The law has fixed the right to cost with just as much certainty as it has any other right which is successfully maintained in court, and when the prevailing party brings himself within the statute he is as justly entitled to recover the same.
It follows that there was no error in the judgment, and it must be affirmed.