On Objections to Cost Bill.
(211 Pac. 162.)
Mr. Harry G. Hoy and Mr. Paul W. Childers, for the objections.
Mr. C. A. Sheppard, contra.
BROWN, J.Objection has been made to the cost bill filed on behalf of J. C. Bayer, trustee, and Eastern Irrigation, Power and Lumber Company, a corporation.
*320Respondent'objects to item — “Premium on bond, two years at $28: $56.” upon the ground that the same is not a chargeable item in the cost bill, there being “no provision therefor under the laws of this state. ’ ’
The law of this state is otherwise. Paragraph 5, Section 25-a, Chapter 203, General Laws of Oregon, 1917, reads:
“In all actions and proceedings a party entitled to recover disbursements therein shall be allowed and may tax and recover such sum paid a person or company for executing any bond, recognizance, undertaking, stipulation, or other obligation therein, not exceeding, however, one per cent on the amount of such bond, recognizance, undertaking, stipulation or other obligation during each year the same has been in force.”
This is codified subdivision 5, Section 6438, Or. L.
• Based upon the amount of the bond in the case at issue, the sum properly chargeable is $34, and no more.
Objections are filed to an item of $99 for “printing appellants’ abstract of record alid appellants’ brief.” Rule 29 of the Supreme Court is as follows:
“It shall be the duty of the clerk in taxing costs to allow the prevailing party the actual cost of printing his abstract or brief (for not exceeding forty copies). But he shall not allow exceeding $1.25 a page, including cover, unless for special reasons apparent in the record it shall be otherwise ordered.” 100 Or. 754 (202 Pac. xiii).
Under this rule, the prevailing appellants are entitled to recover $76.25 for printing abstract and brief.
As provided by Section 931, Or. L., the prevailing parties are entitled to recover for the trail-*321script of testimony at the rate of $.15 per folio, or the snm of $73.80.
Chapter 322, General Laws of Oregon, 1921, is an act providing for taxation and costs in the Supreme Court on appeal. Section 1 reads:
“"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; the necessary expenses of transcript or abstract, as the law or rules require; the printing required by rule of the court, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal, shall be taxed in the supreme court as costs of the appeal.”
See In re Will of Pittock, 102 Or. 196 (202 Pac. 216, 17 A. L. R. 218); Couch v. Scandinavian-American Bank et al., 103 Or. 66 (203 Pac. 891); Livesley et al. v. Strauss, 104 Or. 356 (207 Pac. 1095).
The next objection is that the prevailing parties should not recover more than two thirds of each of the items contained in their cost bill, for the reason that the judgment was affirmed as to one of the three appellants. The rule is, that where there are several appellants, some of whom are successful, they are entitled to a full bill of costs, less such charges as relate exclusively to appellants who have failed: 15 O. J. 91, 92.
The respondent herein may recover his costs against the unsuccessful appellant, and he has properly filed his bill for costs.
With the foregoing exceptions, costs will be entered in accordance with the items appearing in the cost bill on file herein.
Objection Sustained in Part.
*322Correction ordered to mandate July 17, 1923.
On Motion to Recall and Correct Mandate.
(216 Pac. 1028.)
Mr. Harry G. Hoy and Mr. Paul W. Childers, for the motion.
Mr. C. A. Sheppard, contra.
McCOURT, J.Plaintiff has petitioned this conrt to recall its mandate heretofore issued to the Circuit Court, and that when returned, the same be amended by the inclusion therein of a provision that plaintiff recover judgment against the surety in the undertaking on appeal.
The action was instituted in the Circuit Court to recover the reasonable value of services and merchandise alleged to have been performed for, and furnished to, defendants, at their special instance and request, by plaintiff and his assignors.
Plaintiff recovered judgment against all of the defendants, wherein it was recited—
“ * * that the plaintiff have and recover of and from the defendants jointly and severally the full sum of, etc.”
A joint appeal was prosecuted by all of the defendants from that judgment to this court. Defendants obtained a stay of proceedings pending the appeal, by furnishing an undertaking on appeal, providing for such stay.
The undertaking on appeal was executed by all of the defendants, as principals, and the National Surety Company, a corporation, as surety, and, in conform*323ity -with the statute (Section 551, Or. L.), provided that—
“Whereas, it is desired' that execution be stayed pending this appeal,
“Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, J. C. Bayer, as trustee, Joseph B. Keep, as trustee, Eastern Irrigation, Power and Lumber Company, a corporation, and Joseph B. Keep, as principals, and National Surety Company, a corporation * * as surety, do hereby jointly and severally undertake and promise that said J. C. Bayer, as trustee, Joseph B. Keep as trustee, Eastern Irrigation, Power and Lumber Company, a corporation, and Joseph E. Keep, defendants and appellants herein, will pay the damages, costs and disbursements which may be awarded against the said defendants and appellants on said appeal, and if said judgment appealed from as aforesaid, or any part thereof, be affirmed on said appeal that the said defendants and appellants will satisfy said judgment in so far as it shall be affirmed.”
Upon the hearing on appeal, it was decided that the evidence introduced by plaintiff wholly failed to establish liability on the part of J. C. Bayer, trustee, or the Eastern Irrigation, Power and Lumber Company, for the claims sued upon, but that the evidence was sufficient to warrant the verdict and judgment against the defendant Keep.
The judgment of the Circuit Court was in terms reversed, but it was ordered that the cause be remanded to the Circuit Court with directions to enter a judgment upon the verdict against the defendant Keep alone, exonerating the surety on appeal, and with the further direction to enter a nonsuit as to the other defendants. (Opinion handed down January 16, 1923, not reported.)
*324It is the mandate issued according to the above directions that plaintiff seeks to have recalled.
In support of his motion to recall and amend the mandate, plaintiff calls attention to the fact that this court directed the Circuit Court to enter a judgment against Keep, identical in all respects with the judgment appealed from, and claims that such direction in effect constitutes an affirmance of the judgment from which the appeal was taken, as to defendant Keep, and thereby creates the condition provided by the undertaking on appeal, upon which this court is authorized and required to give judgment against the surety.
In opposition to plaintiff’s motion, defendant Keep insists that the appeal having been taken from a judgment rendered against all the defendants upon pleadings setting up a joint, and not a joint and several, liability, an affirmance of the judgment in whole or in part as to the amount of recovery against all the defendants, is essential to create a breach of the undertaking on appeal. Accordingly it is claimed that the judgment which this court directed to be entered against Keep was a different judgment from that appealed from, and consequently the undertaking on appeal was not breached.
The applicable provisions of the statute (Olson’s Compilation), relating to the power of the Supreme Court in cases brought to it upon appeal, and the manner in which its decision shall be given and enforced, are as follows:
Sec. 557. “Upon an appeal, the appellate court may affirm, reverse, or modify the judgment or decree appealed from * * as to any or all of the par*325ties joining in the appeal, * * and may, if necessary and proper, order a new trial.”
See. 559. “The decision of the appellate court shall be given and enforced as provided in this section :—
“1. Upon an appeal to the supreme court, its decisions shall be entered in the journal, and the cause remitted by mandate to the court below for further proceedings as therein directed. * *
“2. If a new trial is not ordered, upon the receipt of the mandate by such clerk, a judgment or decree shall be entered in the journal and docketed in pursuance of the direction of the appellate court, in like manner and with like effect as if the same was given in the court below; * *
“4. If judgment or decree be given against the appellant, it shall be entered against his sureties also, in like manner and with like effect, according to the nature and extent of their undertaking.”
Where the Supreme Court, pursuant to the foregoing statutory authority, by its mandate directs specifically what judgment shall be entered by the lower court, that judgment when entered is in effect the judgment of the Supreme Court: Apex Transp. Co. v. Garbade, 32 Or. 582 (52 Pac. 573, 54 Pac. 367, 382, 62 L. R. A. 513); Bertin & Lepori v. Mattison, 81 Or. 482, 484 (159 Pac. 1167).
It was the rule at common law, in an action brought against two or more defendants on an alleged joint demand, that judgment must be given against all of the defendants, or none, but that rule has been changed by our statutes. In this jurisdiction, in an action brought against two or more defendants upon a joint contract, judgment may be given and rendered against those liable, whether their liability be joint or several, and the other defendants who are not *326liable may be dismissed. Sections 61, 180, 181, Or. L.; Tillamook Dairy Assn. v. Schermerhorn, 31 Or. 308 (51 Pac. 438); Hayden v. Pearce, 33 Or. 89 (52 Pac. 1049); Stivers v. Byrkett, 56 Or. 565, 572 (108 Pac. 1014, 109 Pac. 386, 387); Bertin & Lepori v. Mattison, 80 Or. 354, 357 (157 Pac. 153, 5 A. L. R. 590); Hewey v. Andrews, 82 Or. 448, 455 (159 Pac. 1149, 161 Pac. 108.)
In Dairy Assn. v. Schermerkorn, supra, Mr. Justice Wolverton, after an examination of tbe statutes and painstaking review of the authorities, including tbe earlier Oregon cases, stated tbe result as follows:
“If A, B and O are sued upon a joint contract or obligation, and it should turn out that C was not bound, under tbe rule judgment could go against A and B, while tbe complaint would be dismissed as to C, to tbe same effect as if the action bad been instituted against all upon a several or joint and several contract, and it was shown that C was not liable with tbe others. Nor could it make any difference that several persons were sued as jointly bound, and it should appear that one only was obligated. Judgment could be bad as to him, and tbe complaint dismissed as to tbe others.”
In Bertin & Lepori v. Mattison, 80 Or. 354, 358 (157 Pac. 153), Mr. Justice Burnett bad occasion to reexamine tbe question, and after setting forth in bis opinion tbe sections of tbe statute above cited, tbe learned justice said:
“These enactments superseded tbe common-law rule that in an action on an alleged joint contract, recovery must be had against all tbe defendants or none, so that in such litigation tbe plaintiff may now recover from those defendants against whom be is able to establish bis case, although be is compelled to loose bis bold upon tbe others from whom be seeks *327to recover: (Citing earlier Oregon cases). In Stivers v. Byrkett, 56 Or. 565, 572 (108 Pac. 1014, 109 Pac. 386, 387), Mr. Justice Eakin, reviewing the authorities, says: £It is not necessary to review or cite these cases here, but we find that the great weight of authority and the better reasoning is that the judgment against joint or joint and several debtors, if void as to one, is not necessarily void as to those judgment debtors who were within the jurisdiction of the court’ —citing authorities.
“The opinion speaks also of some precedents holding that such a determination is merely erroneous, and would be reversed on appeal as to all the defendants, and others that it would be reversed only as to the party over whom the. court had no jurisdiction. But the statute sets the matter at rest, so that by legislative authority a plaintiff may recover judgment against those whom he has shown to be liable, while others he sought to charge may escape.”
The Circuit Court then in the first instance might have given judgment against Keep only, and that such judgment should have been given against Keep and not against the other defendants, is the decision expressed in the opinion of this court. The rights and remedies of a judgment creditor for enforcing his judgment for the payment of money, where all the defendants have been served with summons, are in nowise dependent upon the joint or joint and several character of the claim sued upon. In either case the same remedy is given for enforcing the judgment— that is, by execution against the joint property of all the defendants, or against the several property of each of them: Sections 61, 213, 215, 227, Or. L.
Immediately upon the entry of his judgment, plaintiff was entitled to have a writ of execution, running against Keep as well as the other defendants, *328issued for its enforcement: Section 213, Or. L. The undertaking on appeal suspended that right during the pendency of the appeal. The advantages to the defendants, including Keep, which flowed from that stay of proceedings, constituted the consideration for the obligation of the obligees in the undertaking on appeal. The. defendants could have appealed separately, and in that case each defendant would have been required to furnish a separate undertaking on appeal. There may be as many separate appeals from a judgment as there are different active parties to the action: Crane v. Oregon etc. Nav. Co., 66 Or. 317 (133 Pac. 810); Everding & Farrell v. Toft, 82 Or. 1 (160 Pac. 1160).
If the defendant Keep had appealed separately and given an undertaking on appéal in the form of the one under consideration, the liability of the surety upon that undertaking to pay the judgment could not be seriously questioned in the event the Supreme Court had decided that the judgment was correct as to Keep.
The opinion rendered upon the appeal in the instant case decided that the judgment against Keep was not affected by any errors assigned by the defendants upon the appeal, and also that plaintiff is entitled to the exact recovery recorded therein, but against Keep alone.
Clearly, the judgment which this court directed should be entered against Keep was in effect an affirmance of the judgment of the lower court as to Keep. Its foundation was the verdict upon which the judgment appealed from, was entered. It differed from the latter judgment only in the respect that it *329allowed recovery against one of the defendants, instead of against all of them.
The declaration in the opinion that the judgment of the Circuit Court is reversed is qualified and controlled by the subsequent direction that judgment be entered upon the verdict against Keep alone.
It is the prevailing doctrine that if there are several defendants, and upon an appeal by all of them, the judgment against them is reversed as to some and affirmed as to others, the sureties are liable on the bond: 2 R. C. L. 312; 38 Am. St. Rep., note, p. 707.
Upon the subject of breach of condition in undertakings on appeal, it is said in 4 C. J. 1274:
“In case of a joint appeal by several appellants from a judgment against all, a reversal as to one or more, and an affirmance as to others will be a breach of condition, affecting those as to whom the affirmance was rendered.”
The foregoing text is fully supported by the decisions in the following cases: Porter v. Singleton, 28 Ark. 483; Wood v. Orford, 56 Cal. 157; Ferguson v. Allen, 91 Ill. App. 591; Ives v. Hulce, 17 Ill. App. 35; Lutt v. Sterrett, 26 Kan. 561; Gilpin v. Hord, 85 Ky. 213 (3 S. W. 143); Hood v. Mathis, 21 Mo. 308; Johnson v. Reed, 47 Neb. 322 (66 N. W. 405); Seacord v. Morgan, 35 How. Pr. (N. Y.) 487; Fritchie v. Holden, 11 N. Y. Supp. 171; Bently v. Dorcas, 11 Ohio St. 398; Missouri R. Co. v. Lacy, 13 Tex. Civ. App. 391 (35 S. W. 505); Ditnowity v. Staacke (Tex. Civ. App.), 25 S. W. 824; Vandyke v. Weil, 18 Wis. 277; McFeron v. Fidelity Co., 85 Wash. 303 (148 Pac. 14); McDonald v. Mazon, 23 N. M. 439 (168 Pac. 1069, 1073); *330Manweiler v. Truman, 71 Ind. App. 658 (125 N. E. 412).
No case has been called to onr attention involving statutes like ours and an. undertaking on appeal containing terms of the same legal effect as that in the instant case, which announces a rule contrary to that declared and supported by the authorities cited.
The statute directs that—
“If judgment * * be given against the appellant, it shall be entered against his sureties, also, in like manner and with like effect according to the nature and extent of their undertaking.” Subdivision 4, Section 559, Or. L.
That direction is binding upon this court. Judgment was given against the appellant Keep, in which case the statute directs that such judgment shall be entered against his surety also, and tbis court is without power or authority to exonerate such surety.
The motion of plaintiff to recall the mandate is therefore allowed, and it is further directed that a new mandate issue directing the Circuit Court to enter judgment upon the verdict against the defendant Keep and also against his surety upon his undertaking on appeal, according to the nature and extent of the undertaking of the surety therein, and that a nonsuit be entered as to the other defendants.
Mandate recalled and ordered corrected.
■Motion to Recall Mandate Allowed, With Directions.