Anderson v. Adams

76 P. 16, 44 Or. 529, 1904 Ore. LEXIS 44

Opinion

Mr. Justice Wolverton

delivered the opinion.

Judgment was affirmed in the above cause November 16, 1903, 43 Or. 621 (74 Pac. 215), but no cost bill was filed until December 28th, and it has never been served upon the adverse party. Based upon this record, the appellant, on March 19th following, being subsequent to the first day of the next regular term of this court, moved to strike out the cost bill for the reason that it was not filed within five days after the affirmance, or served as required by statute: B. & 0. Comp. § 568, as amended by Laws 1903, p. 209. Within the rule announced in McFarlane v. McFarlane, 43 Or. 477 (75 Pac. 139), the motion will be allowed. This affects the disbursements only. The costs, however, will be allowed as of course (B. & C. Comp. §§ 561, 563), being the attorney’s fee of $15. The filing fee of $10 advanced on the respondent’s appearance in this court will also be allowed, as the statute requiring such fee provides that “the party entitled to costs and disbursements on such appeal shall recover of and from his opponent the amount so paid”: B. & C. Comp. § 887; and it should be taxed as of course, the same as the attorney’s fee. The other item specified in the cost bill cannot be allowed.

Motion Partly Allowed.