MOTION GRANTED. This is a motion to recall the mandate and retax the costs. The opinion in this case was rendered November 30, 1948. Costs and disbursements were allowed to the appellant, although the decision was in favor of the respondent. On December 24, 1948, the appellant filed a petition for a rehearing which was denied on January 5, 1949. On January 14, 1949, the clerk issued a mandate which contained, among other provisions, the following: "It is further ordered and decreed that the appellant have and recover of and from respondent her costs and disbursements in this court taxed at $35.00." On January 21, 1949, the appellant filed the aforesaid motion to recall the mandate and retax costs, accompanied by a statement of her costs and disbursements (commonly referred to as a cost bill) amounting in all to $430.00. In support of the motion there are affidavits of appellant's counsel in substance to the effect that he was under the impression that the time for filing the cost bill "would date from the decision of the court with reference to appellant's petition for rehearing."
Section 10-913, O.C.L.A., as amended by Ch. 23, Oregon Laws, 1943, provides:
"No disbursements shall be allowed in the supreme court to any party unless he shall serve *Page 207 on the adverse party or his attorney, and file with the clerk of said court, a verified statement showing with reasonable certainty the items of all costs and disbursements in said cause. Such statement shall be accompanied by proof of service thereof and shall be filed within 20 days, or such further time as may be allowed by the court, from the time an opinion is rendered in the cause in said court, or, if no opinion is handed down, then within 20 days from the giving of a decision by such court. The total of the items included in the statement of costs and disbursements thus filed, with the exception of items or amounts thereof not allowed by law or by rules of the supreme court, shall be entered by the clerk of said court as a part of the judgment or decree, in favor of the party entitled thereto, unless the adverse party within five days from date of service of such statement shall serve and file his objections thereto, which objections must also be verified. Appearance fees, trial fees and attorney fees shall be allowed as a matter of course to the party entitled thereto, without the filing of a statement of disbursements."
The only opinion rendered in this cause was that rendered on November 30, 1948. That opinion embodied the only decision of the court within the meaning of the foregoing statute. The order denying the petition for rehearing was not a decision of the case but merely the refusal of this court to disturb the decision theretofore announced. It is clear that the twenty-day period provided by the statute within which the appellant might have served and filed her cost bill began to run on November 30, 1948, and that the time was not extended by pendency of the petition for rehearing. Empire Holding Co. v. Coshow, 150 Or. 252, 268,41 P.2d 426, 43 P.2d 907, 45 P.2d 167; McFarlane v.McFarlane, 43 Or. 477, 487, 488, 73 P. 203, 75 P. 139. *Page 208
The statute, however, also provides that the cost bill may be filed within "such further time as may be allowed by the court". The question is presented, therefore, whether the court is authorized to make an order allowing such "further" time after the original twenty-day period has expired. Where, as is frequently if not usually the case, the statute reads that a court may "extend" the time granted for doing an act, it is uniformly held that the order must be made within the statutory time, because, as the court said in State v. Scott,113 Mo. 559, 20 S.W. 1076: "The word `extended,' as employed in this statute, means `prolonged;' and of course a prolongation of time cannot occur after the time originally limited has expired." To the same effect see State v. Cutberth, 203 Mo. 579,102 S.W. 658; Schlosser Leather Co. v. Gillespie, 157 Tenn. 166,6 S.W.2d 328; Crane Enamelware Co. v. Smith, 168 Tenn. 203,76 S.W.2d 644; Coast Electric Service, Inc. v. Jensen, 111 Cal. App. 124, 295 P. 346. See, also, Rosin v. Lidgerwood Mfg. Co.,89 A.D. 245, 86 N.Y.S. 49; Wisconsin Cent. R. Co. v.Comstock, 71 Wis. 88, 36 N.W. 843. A dictum in Willis v.Lance, 28 Or. 371, 382, 43 P. 384, 43 P. 487, supports this view of the meaning of the word "extension" in statutes of this character.
There is no such implication, however, from the words "such further time as may be allowed by the court". The word "further" in this context means "additional" (Funk Wagnalls New Standard Dictionary), and there is no plain indication of legislative intention that the order allowing additional time must be made within the twenty-day period, as against the view that jurisdiction was conferred upon the court to make such an order after the expiration of that period. *Page 209 Some slight evidence that the latter alternative is to be preferred may perhaps be found in the legislative departure from the conventional mode of expression. See, e.g., § 1-1007, O.C.L.A., "enlarge such time", and § 5-703, O.C.L.A., "within any extension that may be granted." In the absence of any controlling guide we are inclined to give the statute a liberal construction, and we, therefore, hold that the court is authorized to allow further time for filing the cost bill after the original twenty-day period has expired.
This leaves only the question of whether the appellant has made a showing which will justify the court in granting the relief sought. Her attorney frankly acknowledges that the delay was due to his own misinterpretation of the statute. It can be urged in his favor that it could be plausibly argued that the order denying the petition for rehearing was a "decision" within the meaning of § 10-913, O.C.L.A., as amended, although that interpretation is rendered inadmissible by Empire Holding Co. v.Coshow, supra, and McFarlane v. McFarlane, supra. These cases, however, while applicable and controlling, were constructions of a statute which has been superseded by the statute governing this case, and we do not think that the appellant should suffer because of the inadvertence of her attorney in overlooking them.
There can be no question but that the court has jurisdiction to recall the mandate (Williams v. Pacific SuretyCo., 66 Or. 151, 161, 127 P. 145, 131 P. 1021, 132 P. 959, 133 P. 1186; Krause v. Oregon Steel Co., 50 Or. 88, 91, 91 P. 442, 92 P. 810), and this would seem to be necessary in any event, as that document provides for the recovery of appellant's costs and disbursements in the sum of only $35.00. This sum is made up of an appearance *Page 210 fee of $20.00 and an attorney's fee of $15.00. These items, together with a trial fee of $6.00, inadvertently omitted, the appellant "is allowed as a matter of course * * * without the filing of a statement of disbursements." § 10-913, O.C.L.A., as amended.
It is, therefore, ordered that the mandate be recalled, and that the appellant's statement of costs and disbursements heretofore presented to the clerk be filed. *Page 211