62 P. 924 | Idaho | 1900
This is an appeal from an order, made after judgment, striking out the plaintiffs bill of costs. It appears from the record that the decree was entered July 5, 1899, and that the decree and findings were not indorsed "Filed-” until August 22, 1899. Notice of the court’s decision was given and served. Afterward, August 25, 1899, the plaintiff filed his memorandum of costs, but this was more than five days after the notice of the court’s decision was given. Thereafter the defendant, after due notice, moved the court to strike out the plaintiff’s bill of costs on the ground that it was not filed within the statutory period of five days from the notice of decision. The plaintiff filed affidavits in opposition to said motion, wherein it is stated that the plaintiff was, at the time the decision was rendered, absent in one of the eastern states, and that his attorney was unable to secure the necessary data to make out the memorandum of costs. The court sustained the motion, and struck the memorandum of costs from the files. We see no error in the action of the court. The statute (Act Feb. 14, 1899, amending Rev. Stats., sec. 4912; Acts 1899, pp. 231, 232) provides that “the party in whose favor the judgment is rendered and who claims his costs, must within five days after the verdict or notice of the decision of the court or referee, file with the clerk and serve upon the adverse party or his attorney, a copy of a memorandum of the items of his costs and disbursements in the action or proceeding, which memorandum must be verified,” etc. This statute is mandatory in its terms. The memorandum was not filed in time. The failure to file it within the time required by the statute can only be charged to negligence. The plaintiff cannot be excused on the showing made, under the provisions of section 4229 of the Revised Statutes. The order striking out the cost bill was proper.
But, going beyond this question, and looking at the memorandum of costs, we find that all of it, except thirteen dollars and five cents, was for witness fees, not itemized as required by the statute, stated in the memorandum as follows: “Henry Harger, «$43; Frank V. Lamb, $43.50; Frank C. Mandell, $32.50; Thomas J enkins, $3; Charles Haney, $3; W. H. Cherry, $40; Ed. Jamison, $42; Peter Bursted, $41.50; Charles H. Furey,