that the court, without the plaintiff's consent, and before the expiration of the time for presenting the reply brief, entered an order granting a nonsuit and dismissing the action, is a harmless error, and is not ground for a reversal of the judgment for nonsuit, if, upon the case made, the plaintiff was not entitled to recover, 104 A motion to vacate an order dismissing a cause for want of prosecution is granted in the discretion of the court, and facts not before the court when the nonsuit was granted, if there is good excuse for their not being produced at that time, may by the court be considered.105 It is not error to refuse to reinstate a case, dismissed for the reason that the attorneys had left the courtroom shortly before the noon adjournment, thinking the court could not reach their case before noon, and the court did actually come to that case on the calendar and dismissed it for lack of prosecution, 106 Pacific 104 Vincent v. City of Grove, 102 Cal. 405, 36 Pac. 773. 105 Moore v. Thompson, 138 Cal. 23, 70 Pac. 930; Aultman-Taylor Machine Co. v. Caldwell, 14 Okla. 472, 78 Pac. 319. 106 Kline v. Higday, 15 Okla. 137, 79 Pac. 774. CHAPTER LV. JUDGMENT FOR COSTS. § 1494. In general. The clerk must within two days after the costs are ascertained insert the same in the blank left in the judgment for that purpose, and make similar insertions in copies and dockets of the judgment.1 The prevailing party in a justice. court is by law entitled to costs of suit and enforcement of execution upon the judgment.2 If § 1495. Costs-Affidavit.-The affidavit by the attorney of the party accompanying the bill of costs is good under the statute. Any one who has knowledge of the facts may verify the memorandum. And a verified bill of costs, properly filed is prima facie evidence that the items thereof have been necessarily incurred. If the affidavits relating to the taxation of costs are conflicting, and some of the items relate to facts of which the court has actual knowledge, its ruling will not be disturbed. a party entitled to costs neglects to serve and file his memorandum thereof until more than five days have elapsed after he has knowledge of the decision of the court, though no written notice of it has been served upon him, the filing is too late, and the costs will be stricken from the judgment on motion. And a cost-bill filed before the filing of the findings and entry of judgment is filed before the time authorized by law, and should be stricken out on motion. The time for filing a cost-bill in the superior court, after 8 1 Cal. Code Civ. Proc., § 1035. 2 Cal. Code Civ. Proc., § 924. 8 See Cal. Code Civ. Proc., § 1033; Morris v. Rodgers, 26 Or. 577, 38 Pac. 931. 4 Yorba v. Dobner, 90 Cal. 337, 27 Pac. 185. 5 San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56. See Barnhart v. Kron, 88 Cal. 447, 26 Pac. 210; Gould v. Duluth etc. Elevator Co., 3 N. Dak. 96, 54 N. W. 316. 6 Fanning v. Leviston, 93 Cal. 186, 28 Pac. 943. See Hoyt V. Selby Smelting Co., 90 Cal. 339, 27 Pac. 288. 7 Dow v. Ross, 90 Cal. 562, 27 Pac. 409; Mullally v. Irish-American Benev. Soc., 69 Cal. 559, 11 Pac. 215. 8 Sellick v. De Carlow, 95 Cal. 644, 30 Pac. 795. As to filing and service of cost-bill, see Riddell v. Harrell, 71 Cal. 254, 12 Pac. 67; Thompson v. Branron, 76 Cal. 618, 18 Pac. 783. As to time for filing objections to cost-bill under Oregon code, see affirmance of an appeal from the justice court, may be extended by stipulation of the parties, or by order of the judge. § 1496. Attorneys' fees.-The measure and mode of compensation of attorneys and counselors shall be left to the agreement, express or implied, of the parties. But parties to actions or proceedings are entitled to costs and disbursements, as provided by statute.10 Costs are taxable only by force of statute.11 But the recovery of costs, both in actions at law and suits in equity, may be regulated by statute.12 The statute as to costs in existence at the time of rendition of judgment will control the question.13 The statute is to be strictly construed.14 In foreclosure cases, counsel fees are allowed by the court where there is a stipulation. in the mortgage for counsel fees.15 Attorney's fees not being specified by the code section as part of the costs to be allowed in partition, they cannot be taxed as part of the costs. 16 An attorney has no lien upon a judgment recovered by him in favor of his client for a quantum meruit compensation for his services. Such lien extends only to costs given by statute.17 § 1497. Retaxing costs.-If items are included in the bill of costs which are not properly taxable, it affords no just ground for refusing to issue an execution or recalling one, but the remedy is by motion to retax.18 The clerk of the court has no authority to enter a judgment for costs while a motion to retax is pending. 19 Costs are not a part of the judgment rendered in a cause, and can Hislop v. Moldenhauer, 24 Or. 106, 32 Pac. 1026; Walker v. Goldsmith, 16 Or. 161, 17 Pac. 865. 9 Cal. Code Civ. Proc., § 1054; Beilby v. Superior Court, 138 Cal. 51, 70 Pac. 1024. 10 Cal. Code Civ. Proc., § 1021. 11 Board of Commissioners v. Lee, 3 Colo. App. 177, 32 Pac. 841. 12 Kinnear v. Flanders, 17 Colo. 11, 28 Pac. 327. 13 Hepworth v. Gardner, 4 Utah, 439, 11 Pac. 566. 14 Jackson v. Siglin, 10 Or. 93. As to erroneous judgment for attorney fees in dismissal of action of ejectment, see Mason v. McLean, 6 Wash. 31, 32 Pac. 1006. 15 See Stats. 1874, p. 707. See, also, Sichel v. De Carrillo, 42 Cal. 494; Patterson v. Donner, 48 Cal. 380; Cal Code Civ. Proc., § 1500. 16 Legg v. Legg, 34 Wash. 132, 75 Pac. 130. 17 Ex parte Kyle, 1 Cal. 331; Mansfield v. Dorland, 2 Cal. 517; Russell v. Conway, 11 Cal. 103; Hogan v. Black, 66 Cal. 41, 4 Pac. 943. 18 Meeker v. Harris, 23 Cal. 286. See Burnham v. Hays, 3 Cal. 115, 58 Am. Dec. 389; Petty v. San Joaquin County Court, 45 Cal. 245. 19 Santa Clara etc. Lumber Co. v. Supervisors, 71 Cal. 268, 12 Pac. 129. not be retaxed in the supreme court, unless there was a motion for retaxation denied in the court below.20 Where the parties agreed upon a stenographer, in absence of the official stenographer of the court, and the costs were not taxed in the trial court, and no appeal was taken, the supreme court will not allow such costs.21 If the court adds to the judgment the costs of the prevailing party after the time for filing the same has expired, and after an appeal has been perfected, the error can only be corrected by an appeal from the order.22 Where costs on appeal to the supreme court are not entered on the judgment docket in the court below, they do not become a lien on property until the levy of an execution.23 § 1498. Costs, when allowed-Allowance, when discretionary. -The allowance of costs rests in discretion of the court of original jurisdiction. And where, on sustaining a demurrer to a complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, the court gave judgment for the defendant for full costs, including a jury fee, it was held no such abuse of discretion as to warrant interference by the supreme court.24 A court may, in its discretion, grant a nonsuit without requiring payment of the costs. 25 The discretion to "order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require," 26 cannot be exercised until a decision has been made in the contest upon which the discretion may be based.27 The supreme court will only review the ruling of an inferior court in the matter of costs upon an appeal from the judgment in the case.28 Where there is nothing in the record to show that the trial court did not properly exercise its discretion in refusing to strike out certain items objected to upon motion to retax the costs, its order will be affirmed. 29 By failing to present the question of costs for review on a bill of 20 Burrichter v. Cline, 3 Wash. 135, 28 Pac. 367. 21 Albert v. City of Salem, 39 Or. 466, 65 Pac. 1068, 66 Pac. 233. 22 Jones v. Frost, 28 Cal. 245. 23 Chapin v. Broder, 16 Cal. 403. 24 Harvey v. Chilton, 11 Cal. 119. 25 Mitchell v. Downing, 23 Or. 448 32 Pac. 394. As to discretion of court as to costs in divorce proceed ings, see Lee v. Lee, 3 Wash. 236, 28 Pac. 355. 26 Cal. Code Civ. Proc., § 1720. 27 Henry v. Superior Court, 93 Cal. 569, 29 Pac. 230. 28 Votan v. Reese, 20 Cal. 90. 29 Barnhart v. Kron, 88 Cal. 446, 26 Pac. 210. Compare Miller v. Highland Ditch Co., 91 Cal. 103, 27 Pac. 536. exceptions, any objection to the costs in the judgment is waived.30 An erroneous order after final judgment, relating to costs, can only be considered upon an appeal from such order.31 § 1499. In particular cases-Claim and delivery.—In an action to recover possession of personal property, if the plaintiff takes the property at the commencement of the action, and the defendant prays a return of it, and the defendant was entitled to the property at the commencement of the action, but his right has ceased and vested in the plaintiff before trial, the judgment should leave the property in plaintiff's possession, but award costs to defendant.32 § 1500. Clerk's duty.-Within two days after the costs are taxed or ascertained, if not included in the judgment, the clerk must insert the same in a blank left in the judgment for that purpose, and must make a similar entry in the copies and docket of the judgment.33 § 1501. Costs are part of judgment.-Costs are included in and constitute a part of the judgment; and hence, though ascertained and adjudged by the court after an entry of the judgment by the clerk may have been m.. yet the law considers such action of the court as having preceded the final judgment.34 § 1502. Ejectment.-If the plaintiff in ejectment recovers judgment he is entitled to the costs, although his recovery is for only a portion of the demanded premises, and the defendant recovers. judgment for the residue.35 § 1503. In partition. Judgment for costs against defendant cannot be included in an interlocutory decree in partition, as it 30 Muir v. Meredith, 82 Cal. 19, 22 Pac. 1080; People v. Marin County, 103 Cal. 223, 37 Pac. 203, 26 L. R. A. 659. 31 Crane v. Forth, 95 Cal. 88, 30 Pac. 193. As to waiver of right to costs see Cantwell v. McPherson, 3 Idaho, 321, 29 Pac. 102. As to when costs are allowed of course, see Cal. Code Civ. Proc., §§ 1022-1026; Purvis v. Kroner, 18 Or. 414, 23 Par, 260. P. P. F. Vol. I-61 |