Motion to strike cost bill denied December 22, 1931 ON MOTION TO STRIKE COST BILL (6 P.2d 229) In the opinion in this case heretofore announced, the judgment of the circuit court was reversed and no specific order was made as to costs and disbursements. The appellant later filed a cost bill containing items aggregating $334, and the respondents have moved to strike it from the files on the ground that our laws do not contemplate the allowance of costs upon a reversal unaccompanied with the entry of a final judgment.
Costs are purely statutory. At common law they were unknown, were not recoverable, and were not adjudged in the judgment of a case: Garrett v. Hunt, 117 Or. 673 (244 P. 82,245 P. 321); In re Will of Pittock, 102 Or. 159 (199 P. 633, 202 P. 216, 17 A.L.R. 218); Cunningham v. Friendly, 76 Or. 16 (147 P. 752); State ex rel. v. Estes, 34 Or. 196 (51 P. 77, 52 P. 571, 55 P. 25); Wood v. Fitzgerald, 3 Or. 568; 7 R.C.L., Costs, p. 781, § 2; and Lehigh Valley Railroad Co. v.McFarland, 44 N.J. Law 674. Section 7-605, Oregon Code 1930, provides: "Costs, when allowed to either party, are as follows: (1) In the Supreme Court, on an appeal, to the prevailing party, $15; (2) * * *." Section 7-612 provides: "When costs are allowed to the prevailing party on appeal to the Supreme Court the appearance fees, trial fees, attorney fees, as provided by law; * * * shall be taxed in the Supreme Court as costs of the appeal."
Respondents argue that these sections of our laws do not direct the allowance of costs, but merely control their amount when they are recoverable by virtue *Page 221 of some other section of our statutes. We have found no other section of our laws which is applicable. In actual practice, as is evidenced by the following citations, costs covering the expenses incurred upon the appeal are generally allowed to the prevailing party upon a reversal in this court unaccompanied with a final judgment: State v. Edmunson, 120 Or. 297 (249 P. 1098,251 P. 763, 252 P. 84); Fischer v. Bayer, 108 Or. 311 (210 P. 452, 211 P. 162, 216 P. 1028); Shaughnessy v. Kimball, 106 Or. 587 (212 P. 485, 213 P. 135); Burdick v. Tum-A-Lum Lumber Co.,97 Or. 459 (191 P. 654). But see Dippold v. Cathlamet TimberCo., 98 Or. 183 (193 P. 909), and Levine v. Levine, 95 Or. 94 (187 P. 609). The rule generally applied where reversals are ordered and the cause is remanded for new trial is that the allowance of costs incurred in the lower court must await the result of the trial which will eventually settle the controversy, but the costs following the entry of judgment in the lower court, and terminating with a reversal, are allowed to the appellant. The cases are collected in 15 C.J., Costs, p. 246, § 606; 7 R.C.L., Costs, p. 804, § 33.
Believing as we do that the above cited sections of our laws warrant the allowance to the appellant of the costs and disbursements incurred since the entry of judgment in the circuit court, and rendered necessary by the appeal, we conclude that the motion to strike should be overruled.
BEAN, C.J., RAND and KELLY, JJ., concur. *Page 222