Robinson v. Honolulu Rapid Transit & Land Co. , 20 Haw. 467 ( 1911 )

OPINION OP THE COURT BY

PERRY, J.

The circuit judge’s order granting the defendant’s motion for a new trial having been set aside hy this court (ante p. 426), the plaintiff now presents his bill of costs. Two items only are objected to, one of $79.56 for money paid by the plaintiff for a transcript of the evidence to be used on the exceptions and the other of $8.50 charged by the clerk under R. L. §1889, for filing thirty-four papers in this court.

Section 1889, R. L., authorizes the taxation as a part of “attorney’s fees” of “all actual disbursements sworn to by the attorney, and deemed reasonable by the taxing officer.” The case came originally to this court on an exception by the defendant to the denial of its motion for judgment non obstante veredicto based on the ground that the proofs adduced did not tend to sustain the case of negligence charged in the plaintiff’s complaint ; and on an exception by the plaintiff to an order setting aside the verdict on the ground that it was against the law and the evidence and the weight of the evidence. A transcript of the evidence was necessary, therefore, in order to enable the court to determine the merits of the exceptions. The outlay for this purpose was unavoidable and reasonable and may be recovered of the .losing party under the provision above quoted.

The item of $8.50 is part of a charge of $17.25 included in the bill for “actual costs of supreme court,” which latter has, since the filing of the bill, been reduced by the clerk 1» $16.75. Section 1889, R. L., which admittedly applies to the supreme court as well as to the circuit courts (see also Act 44, L. 1905), provides for a charge of twenty-five cents as costs “for filing any petition, plea or other paper, at the request of either party.” The thirty-four papers included certified copies of the pleadings and other documents and the original exhibits, filed in this court as a part of the record on appeal. The statute provides no separate charge for the filing of a record on appeal as a -whole. The language used “or other paper” is sufficiently broad to include each of the thirty-four documents for which the change under consideration has been made.

Cr. A. Davis and A. L. G. Atkinson for plaintiff. D. L. Withington for defendant.

The items objected to are allowed.