167 P. 758 | Or. | 1917
delivered the opinion of the court.
The only questions for decision arise out of the objections to the supplementary cost bill which was filed on February 7, 1916, as there are no objections to the cost bill filed by the plaintiff on October 5, 1915. The defendant contends that the supplementary cost bill cannot be allowed because it was not filed within the time fixed by Section 569, L. O. L. The plaintiff argues that Section 569, L. 0. L., is not applicable for the reason that Section 931, L. 0. L., governs and because it was impossible to know the amount of the disbursement until after the time limit prescribed by Section 569, L. 0. L.
Section 569, L. 0. L., provides that no disbursements shall be allowed to a party unless he shall serve upon such adverse parties as are entitled to notice by law and file with the clerk of the court “within five days after the rendition of the judgment” an itemized statement of his disbursements; but
“such statement of disbursements may be filed with the clerk at any time after said five days, but not later than the first day of the next regular term of the court occurring after the expiration of said five days. * * The statement of disbursements thus filed and costs shall be entered as of course by the clerk as a part of the judgment or decree in favor of the party entitled to costs and disbursements ’ ’
unless the adverse party objects, and in that case the court passes upon the objection to the cost bill. The terms of court in Multnomah County are fixed by Sec
“ * * the first Monday in September, the first Monday in October, the first Monday in November, and the first Monday in December.”
Section 931, L. O. L., so far as it is material here reads thus:
“When shorthand, notes have been taken in any case as in this act provided, if the court or either party to the suit or action or his attorney requests a transcript of the notes into longhand, the official reporter shall cause full and accurate typewritten transcripts to be made of the testimony or other proceedings, which shall, when certified to as hereinafter provided, be filed with the clerk of the court where such cause was tried for the use of court or parties. The fees of the official reporter for making such transcripts shall be fifteen cents per folio of one hundred words, and shall be paid forthwith by the parties or party for whose benefit the same is ordered, and when paid shall be taxed as other costs in the case. * * ”
If the expense of extending the shorthand notes of the reporter must‘be entered “as a part of the judgment” which was rendered in the Circuit Court on September 25, 1915, and if such entry must be made after such judgment but within the time prescribed by Section 569, L. O. L., then the supplementary cost bill was filed too late for allowance: Basim v. Wade, 47 Or. 524, 526 (84 Pac. 387). If, however, the disbursement is not taxable “as a part of the judgment” which was rendered on September 25, 1915, but is to be taxed as a part of a judgment yet to be rendered then the supplementary cost bill was not filed too late, but it was filed prematurely.
The rule announced and applied here is fair to litigants, is consistent with previous adjudications and harmonizes Sections 569 and 931, L. 0. L., so as to give force and effect to each. The instant case affords an apt illustration of the harsh results which might follow from any other construction of the statutes relating to costs and disbursements. Shepherd had sixty days from the entry of the judgment within which to appeal: Laws 1913, c. 319. He served a notice of appeal on November 20, and filed it November 22,1915. He appealed within the time allowed by law. The expense of transcribing the testimony was incurred for the sole purpose of aiding an appeal and the disbursement can be claimed only because it is in aid of an appeal. Shepherd could not have filed a cost bill for this item before giving notice of an appeal. To apply the doctrine contended for by the defendant would be