State v. Edmunson

Costs taxed December 28, 1926. ON MOTION TO RECALL MANDATE AND TAX COSTS. (251 P. 763.) This cause is before us on a motion to recall the mandate and permit the defendant to file a cost bill tendered with the motion. The decision of this court was rendered on October 19, 1926. The motion with the tendered cost bill was served upon the prosecuting attorney on November 22, 1926, and filed here November 23, 1926. No objections have been made to said cost bill or any item therein contained. The statute provides:

"No disbursements shall be allowed to any party, unless he shall serve on such adverse party or parties as are entitled to notice by law, or rule of the court, and file with the clerk of such court within five days after the rendition of the judgment or decree, a statement, with proof of service thereof, if notice to the adverse party is required, indorsed thereon or attached, showing, with reasonable certainty, the items of all disbursements, * *. Such statement of disbursements may be filed with the clerk at any time after five days, but not later than the first day of the next regular term of the court occurring after the expiration of said five days; but in such case, such statement must be served on the adverse party or parties whether he or they shall have appeared or not." Or. L., § 569.

The cost bill was tendered during the same term of this court in which the decision was rendered and time for filing it has not expired.

It is not necessary to recall the mandate in order for this court to pass upon the cost bill: State v. Way, decided December 21, 1926. The cost bill tendered is as follows:

Filing fee ....................... $ 15 Attorney's fee ................... 15 Transcript of evidence ........... 110 Printing of brief ................ 25 ____ $165

For the reason that the filing fee is not exacted from the defendant in a criminal case that item must be rejected. There having been no objection made to the other items, they are allowed and should be taxed against Lane County from which the appeal came: State v. Way, above.

The costs taxed are as follows:

Costs .............................. $ 15 Transcript of evidence ............. 110 Printing of brief .................. 25 ____ Total ............... $150

COSTS TAXED.

Costs retaxed January 11, 1927. ON OBJECTIONS TO COST BILL. (252 P. 84.) This matter comes on to be heard on objections to the cost bill of the defendant. An opinion was rendered on December 28, 1926, in which the costs were taxed. The objections were filed on the following day, December 29th. On November 23, 1926, defendant presented a motion to recall the mandate and for permission to file the cost bill. The effect of the opinion rendered in this case on December 28, 1926, was to permit defendant to file the cost bill. The objections to the cost bill were therefore made within five days from the date the cost bill was properly filed, that is, on December 28, 1926. The order based upon the opinion of December 28, 1926, has not been sent down. The court therefore has jurisdiction to consider the objections to the cost bill. The only objection is to the item of $110 for transcript of evidence which defendant claims. The plaintiff claims that there are only 200 folios and the charge therefor should be only $30. The transcript consists of 200 pages of testimony, averaging 2 1/2 folios to the page. The aggregate of folios is 500, amounting to $75. The order of December 28, 1926, will be amended, therefore, so as to tax the costs as follows:

Attorney's fees .................... $ 15.00 Transcript of evidence ............. 75.00 Printing of brief .................. 25.00 _______ Total ................. $115.00

COSTS RETAXED.