OPINION In due time after the filing of the opinion in this case appellants filed their cost bill containing the following items, viz.:
*Page 294County clerk's fee ....................... $32.90 Clerk of this court ...................... 25.00 Typing testimony ......................... 215.45 Typing briefs ............................ 7.85
Counsel for respondent filed objections thereto. The clerk sustained the objection to the item of $215.45 for transcribing the testimony, but allowed the other items. Appellants have appealed from the ruling of the clerk.
This is a companion case to Holtzman v. Bennett (No. 2634) 232 P. 1081 and Holtzman v. Bennett (No. 2635) 232 P. 1082. The defendants in these lien cases sought to have them consolidated for trial in the lower court, but, upon objection on the part of plaintiffs, the motion was denied. The defendants appealed to this court, assigning several errors, but they were all overruled except the one pertaining to the refusal of the court to consolidate the cases, and, as to that, the case was remanded, with instructions that the cases be consolidated.
The reason assigned by the clerk for disallowing the item of $215.45 in toto is that the transcript of the evidence in this case is the same as in case No. 2634, and to allow a charge for it would be to permit double payment for only one expenditure. We think the clerk is in error. The two cases were not tried together, and the testimony in one case could not be the basis of a bill of exceptions in the other case.
It is contended by the respondent that the appellant obtained no such relief in this court as entitled it to recover its costs on appeal. We cannot agree with this view. The costs in this kind of cases are usually considerable, both before and after judgment, and necessarily they are multiplied when there are two trials instead of one. We need not point out all of the possibilities in this direction. We think the appellants are entitled to recover all of their legitimate expenditures incurred on this appeal.
It is ordered that the appellants be allowed so much of the item of $215.45 as they actually expended, not to exceed the amount fixed by the rule of court, in addition to the items allowed by the clerk, to be calculated and fixed by the clerk, with right of appeal therefrom by either party within the usual time. *Page 295
SECOND OPINION — ON COSTS May 1, 1925. 235 P. 1117.