Cunningham v. Friendly

delivered the opinion of the court.

1, 2. Counsel for plaintiff strenuously contend the cost bill was not properly verified, and was filed prematurely. The record shows a cost bill was filed on the 8th of May, the date of the mandate, which cost bill was verified by defendant’s attorneys. This he had a right to do: Morris v. Rodgers, 26 Or. 578 (38 Pac. 931). Objection is also made that it was not properly served, but counsel appeared and objected to it; and, having done this, he waived his right to raise any objection as to service. It also appears that two cost bills were filed, but there is only one here, and we can only judge of what is done by the orders of the court.

3-5. If the item of $4.80 was incurred in taking the appeal, it was improperly allowed; but there is nothing here to show what it was for, and, as error is not presumed, this item should stand. The item of $56 for original should also stand, as there is nothing here to show its incorrectness; but there is no authority of law for the allowance, of $18 for a copy. Although counsel may have needed these copies, they cannot charge for them in the cost bill, and the item of $18' must be stricken out.

*18This necessitates a reversal of the case, and it is so ordered. Reversed. Modified on Rehearing.

Modified April 20, 1915.

On Rehearing.

(147 Pac. 752.)

In the former opinion of this court the judgment was reversed. Counsel for respondent now moves to modify it, instead of reversing it.

As this is a case where the court can determine what judgment ought to be entered, it will be modified by ordering the court below to strike out the sum of $18 allowed for copy of testimony, and affirmed as to the balance, with costs in this court to the appellant.

Modified on Rehearing.