Miller v. Tobin

16 P. 479, 15 Or. 595, 1888 Ore. LEXIS 125

• Court: Oregon Supreme Court
• Decided: January 10, 1888
• Status: Published

Opinion

By the Court.

After final decree in this case, and within the time allowed by the rules of this court to file a petition for rehearing, appellant has filed a motion to be allowed costs, because the question upon which the case has been finally disposed of was not raised at the argument of the demurrer at the May term, 1883, of the court below, when the appellant’s legal remedy still existed; but on the contrary, was raised at the first time upon the merits in the fall of 1885, after the appellant had been at great expense in taking his testimony, and after his legal remedy was barred by the Statute of Limitations.

We have heretofore announced in equity cases the prevailing party in this court is entitled to costs, unless there should be equitable considerations arising out of the facts of the particular case which seemed to render a different rule necessary. This is the rule which has always prevailed in equity as to costs. In this case the party applying for costs is the plaintiff. He selected the forum and chose his own remedy and failed. The court below decided the case against him on the very ground upon which the case was placed here. He was as much bound to know the law as was the defendant, and we fail to perceive any reason in the circumstances of the case which would require the application of the rule which the appellant invokes.

Let the motion be overruled.