59 P. 812 | Or. | 1900
delivered the opinion.
This is an action brought to recover the proceeds of property heretofore escheated to the state. The facts are that about thirty or forty years ago a man calling himself John Fenstermacher settled in Multnomah County, where he continued to reside until his death, in 1887, and in
In Mullery v. Hamilton, 71 Ga. 720 (51 Am. Rep. 288), a legacy had been left to a certain child; and the question was whether he survived the testatrix, and whether a certain person who did survive her and claimed to be ■the legatee was such in fact. On the question of identity it was held admissible to show the name such person bore, his personal appearance and conversation, and the account he gave of himself, his family connections, and associations . The doctrine of this case is approved by the Civil Court of Appeals of Texas in Nehring v. McMurrain, 45 S. W. 1032; and, although the opinion in the Nehring Case was subsequently modified (Tex. Civ. App. 46 S. W. 369) because it appeared that the person who made the declarations was living at the time of the trial, the general doctrine does not seem to have been disturbed. In Cuddy v. Brown, 78 Ill. 415, and Adie v. Commonwealth, 25 Grat. 712, evidence of this character seems to have been admitted without objection. And in Thompson v. Woolf, 8 Or. 454, it was said by this court that such evidence would have been competent if it had been offered on the trial. From these authorities, — and they are the only ones directly in point to which our attention has been called, or which we have been able to find, — we conclude that there.was no error in admitting the testimony referred to. As haying more or less bearing upon the general question, reference, however, is made to Hubback, Sue. 457 ; Wharton, Ev. § 208 ; Gillett, Ind. & Col. Ev. § 143; Jackson v. Etz, 5 Cow. 314; Howard v. Russell (Tex. Sup.), 12 S. W. 525; Byers v. Wallace, 87 Tex. 503 (28 S. W. 1056, and 29 S. W. 760); Inhabitants of North Brookfield v. Inhabitants of Warren, 82 Mass. (16 Gray) 171; Hintze v. Krabbenschmidt (Tex. Civ. App.), 44 S. W. 38; Brown v. Brown (Tex. Civ. App.), 36 S. W. 918.
Decided 26 February, 1900.
On Defendant’s Motion for Costs and Attorney Fees, and On Plaintiff’s Motion for Interest on the Judgment.
[60 Pac. 711 j
These are motions by the respondent to be allowed certain sums as costs, disbursements, and attorney’s fees, and by appellants for interest on the money due on the judgment of the court below from the time demand was made upon the Secretary of State for the issuance of a warrant therefor. The special counsel for the respondent insists that the state is entitled to retain out of the fund in the hands of the State Treasurer the following sums paid by it as disbursements, viz. : For printing brief and abstract, $280 ; copy of judgment roll, $3 ; copy of bill of exceptions, $30; and for extending stenographic notes of the testimony, $30. He also petitions the court for an additional allowance of $1,000 as attorney’s fees; $10.80, traveling expenses, and eighty cents, express charges.
As to the claim for extra allowance as attorneys’s fees, no showing was made in the court below or in this court as to the reasonable value of the service performed ; and, that court having allowed special counsel the sum of $1,000, it will not be increased in this court, nor the other items of expense be allowed, in the absence of such showing.