Sugarman Co. v. Morse Bros.

OPINION Within five days after notice of the decision in this cause the appellants filed with the clerk and served upon *Page 203 the respondent a verified cost bill in accordance with rule 6 of this court. The respondent, in accordance with the same rule, filed with the clerk and served its objections to the costs claimed. The objections were heard and settled by the clerk, and the costs were taxed at the amount claimed by the appellants, to wit, $70.75. The respondent appeals from the clerk's decision.

1. The second item of the cost bill reads as follows:

"To typewriting transcript and statement on appeal and bill of exceptions, 103 folios at 15 cents, $15.45."

The objections to this item are twofold. The first is that the transcript contains not to exceed 92 folios, and therefore the item of $15.45 as taxed by the clerk should be reduced to $13.80.

Rule 6 of this court requires cost bills to be verified. Otherwise the mere exception to some statement in the cost bill would control. The practice, therefore, is that, upon filing and serving a verified cost bill as required by rule 6, a prima facie case is made, which must be overcome by proof of the party excepting thereto. Clark v. Eltinge, 39 Wash. 696, 83 P. 901.

There is nothing in the papers before us to show that the number of folios was determined by actual count, nor anything to show the method by which the number of folios was estimated. In this situation we are led to the conclusion that the respondent has failed to overcome the prima facie case made by appellants' verified cost bill, and for this reason we shall allow the item of $15.45 to stand.

2. The second objection to the bill is that the appeal in this cause was taken from an order, and, there being no bill of exceptions attached to the order as required by section 11 of chapter 142, Statutes 1915 (3 Rev. Laws, p. 3344), the only papers that may legally be included in the transcript on appeal from such order are the bill of exceptions, the notice of appeal, the undertaking on appeal, and the order appealed from.

The record on appeal, in addition to the notice of appeal, the undertaking on appeal, and the order appealed from, contains copies of the complaint, summons, affidavit of service, order and rule to show cause, *Page 204 demurrer to complaint, notice of decision, order on rule to show cause, and certificate of the clerk. It is contended that these papers are not legally a part of the transcript; that they are fugitive papers, irrelevant and immaterial, and should be eliminated from the item of cost of the transcript, to wit, $15.45, leaving the sum of $2.10 as the true sum to be allowed as cost of the transcript, thus reducing the total cost taxed from $70.75 to $57.40.

Conceding that the papers specified were not included in a bill of exceptions attached to the order appealed from, nevertheless it appears affirmatively from the record that in arriving at a correct solution of the appeal all said papers and files were treated and used as a part of the record without objection from the respondent.

The respondent, having failed and neglected to move to strike said papers from the record because they were not included in a proper bill of exceptions, and having relied upon them in his argument on appeal, is in no position to complain that it should not be taxed with the cost of their transcription.

The ruling of the clerk is affirmed. *Page 205