This is a motion to tax costs. The items and amounts sought to be taxed are as follows: Transcript of testimony $89.55; making and certifying copy of record $27; premium on bond for filing writ of error $140; premium for renewal of said bond $23; premium on bond on motion for new trial $130. The cost of the transcript, the cost of the record and the premiums on bond for writ of error are, we think, beyond dispute and should be taxed against the plaintiff. The premium on the bond for a new trial is disputed. Section 2433, R.L. 1925, requires that on filing a motion for a new trial there shall also be filed "a bond conditioned for the payment of all costs of the motion in case it is not sustained and that the moving party will not to the detriment of the opposite party remove or otherwise dispose of any property he may have liable to execution." The filing of the motion within the prescribed time and the filing of the bond operate as a stay of execution until the motion is decided.
The motion for a new trial was filed within the prescribed time and there was also filed a written instrument denominated "Bond of Defendant on Motion for New Trial." The Waiakea Mill Company (the defendant) appears as principal and The Metropolitan Casualty Insurance Company of New York appears as surety. The obligation of the surety, for which the defendant expended the sum of $130, is as follows: "Now, if the said principal obligor shall pay all costs of the said motion for new trial *Page 354 in case that it is not sustained, and if it will not, to the detriment of the obligee, remove or otherwise dispose of any property it may have liable to execution, then this obligation shall be of full force and effect, otherwise of no effect." It will be observed from the foregoing language of the bond that the obligation of the surety is just the opposite of the obligation required by the statute. In other words, the obligation of the surety is that it will be liable to the obligee provided the principal does not remove or otherwise dispose of any property it may have liable to execution, whereas the statute contemplates a bond upon which the surety is liable provided the principal does remove or otherwise dispose of any property it may have liable to execution to the detriment of the obligee.
Section 2542, R.L. 1925, which contains the schedule of costs for the circuit courts and the supreme court, provides as follows: "All actual disbursements sworn to by an attorney, and deemed reasonable by the taxing officer, may be allowed in taxation of costs." We think the disbursement under consideration was not reasonable and should not be allowed. It was made for the purpose of procuring a surety whose obligation under the bond was diametrically opposed to that required by the statute and was of no benefit or protection to the obligee (the plaintiff). We think the plaintiff is no more liable for this disbursement than if the defendant had paid the amount to the surety upon its promise to execute a proper bond but had later refused to do so.
The contention that the plaintiff, by not objecting to the bond prior to the hearing of the motion for a new trial, has waived her right to object to the reasonableness of the disbursement cannot be sustained. The motion for a new trial was filed on September 12, 1928. The bond was executed on September 10, 1928, and filed September 12. According to the affidavit of Carl S. Carlsmith, counsel for *Page 355 the defendant, the premium was paid on September 10, 1928. The premium was therefore paid before the bond was filed. If it had not been paid until after the bond was filed and after the plaintiff had had an opportunity to inspect it there might be some force in the suggestion that the defendant, in the absence of objection, had a right to assume that the bond was satisfactory to the plaintiff and that the payment of the premium was justified. Under such circumstances there perhaps would be room for an estoppel on the ground that the plaintiff by her silence had induced the defendant to pay out money which it would otherwise not have paid. Under the facts before us, however, neither of the parties is in the position above suggested. The premium having been paid before the bond was filed and before the plaintiff had any opportunity to object to it, the defendant's position, so far as the premium was concerned, was not changed by the plaintiff's failure to object when the bond was filed. We therefore think she is not estopped from now claiming that the disbursement was unreasonable.
Of course the situation is very different from that which exists when a party against whom a judgment, on a motion for a new trial, is rendered seeks afterwards to assail the judgment on the ground that no sufficient bond as required by statute had been filed. In such a case the failure of the losing party to object to the bond before judgment estops him from afterwards assailing it on this ground. The estoppel in such a case is based on the very just and equitable and universally recognized rule that a party who fails to speak when he should have spoken and by his silence beguiles his adversary into a difficulty from which he cannot escape shall not thereafter be permitted to speak. But as we have already seen, the situation before us does not call for the application of this rule. The plaintiff has taken the first opportunity presented to her *Page 356 to object to the disbursement in question as an item of costs against her.
Costs are taxed against the plaintiff in the sum of $279.55.