Robertson v. Henderson , 181 Or. 200 ( 1947 )

Objections to cost bill sustained May 20, 1947 ON OBJECTIONS TO COST BILL Respondent's statement of his costs and disbursements includes the following items: Transcript of testimony, $67.20; printing respondent's brief, $206.25; filing fee, $10.00; and prevailing party fee, $15.00. The appellant objects to the item of $67.20 on the ground that the appellant, in taking his appeal, had filed a complete transcript of the testimony with the clerk of this court as a part of the record on appeal and that no transcript of testimony had been filed by the respondent.

The transcript of testimony must constitute a part of the record on appeal before the expense thereof can be allowed. Bellv. Spain, 110 Or. 114, 135, 222 P. 322, 223 P. 235; McGowan v.City of Burns, 172 Or. 63, 77, 137 P.2d 994, 139 P.2d 785. As respondent's transcript is not a part of the record, appellant's objection to this item is sustained.

Appellant asserts that it would be inequitable for this court to allow the respondent any costs or disbursements, and especially the cost of printing his brief, on the ground that the appeal was dismissed by the court suasponte and not on motion of respondent. It is argued by the appellant that respondent could have avoided the cost of printing his own brief and could have saved the appellant the expense of printing his abstract of record and brief had he challenged the jurisdiction of this court immediately after the filing of the transcript. This being an equity suit, appellant requests this court, in the exercise of its discretion, because of the peculiar circumstances here involved, to disallow costs and disbursements to the respondent.

The attempted appeal was from an interlocutory decree which ordered the defendant "to render to the plaintiff in the above entitled court and suit, a full and complete accounting of all moneys received and expended by him * * *." It was dismissed on the authority of three fairly recent decisions of this court, which are cited in the former opinion, holding that such a decree is interlocutory and not appealable. Appellant was at fault in attempting to appeal from such decree. Respondent tacitly conceded the jurisdiction of this court and was apparently as anxious, on account of convenience, as was the appellant to have the correctness of the interlocutory decree determined before an accounting was rendered.

Awarding of costs on appeal in an equity suit is within the discretion of the court and they should be allowed or denied according to the justice of each case. On the factual situation here presented it would not be consonant with justice to allow costs to either party. Columbia Nat. Sand Dredging Co. v.Morton, 28 App. D.C. 288, 310, 8 Ann. Cas. 511, 519, 7 L.R.A. 114; see also in this connection Seeley v. Baptist Ministers'Aid Society, 302 Mich. 199, 4 N.W.2d 517; Ideal Furnace Co. v. International Molders' Union, 204 Mich. 311, 169 N.W. 946; Meeks v. Leach, 91 Ill. 323; In re Bonime'sWill, 265 A.D. 964, 38 N.Y.S.2d 960.

The appellant's objections to respondents cost bill are sustained. Neither party will be allowed costs in this court.