Wilkin v. Tadlock

SCHOTTKY, J. pro tem.

Defendants have appealed from an order “postponing the date of trial of the . . . action and ordering these defendants to pay plaintiffs’ costs incurred as a result of said postponement,” and from an order denying defendants’ motion to tax costs.

The record shows that the action was set for trial on June 12, 1951. On that date one of the attorneys for defendants made a motion for postponement because of the illness of his partner, an attorney for defendants. The court thereupon rendered the following order:

“It Is Hereby Ordered, Adjudged and Decreed that the trial of this action be postponed until the 16th day of October, 1951, at the hour of ten o ’clock A. M.

“It Is Hereby Further Ordered, Adjudged, and Decreed that defendants pay all costs incurred as a result of the postponement of the subject action, including all costs of plaintiffs in the amount of $-

Plaintiffs filed a memorandum of costs on June 13, 1951, in the sum of $722.62, which included travel expenses of plaintiffs amounting to $705.32.

[157]

On June 15, 1951, defendants filed notice of Rejection of Continuance Upon Condition, alleging therein that defendants at the time of making application for continuance “understood that the costs so imposed would he legal costs.” On the same day defendants filed their motion to tax costs, requesting that the travel expenses be stricken from the memorandum of costs.

On June 28, 1951, the court denied defendants’ motion to tax costs and made findings as follows: That Mr. Bailey, attorney for the defendants, moved the court for a

continuance;

that Mr. Roger Sans, one of the attorneys for the plaintiffs, announced that since the commencement of the action both of his clients had moved from the state of California, one to Kansas, where he was employed, and the other to Mexico, where he was employed; that both of said parties had traveled from their said places of employment to Woodland to testify on behalf of the plaintiffs at the trial of the action set for June 12,1951; that Mr. Roger Sans further announced that they were anxious and ready and willing to go to trial but that, due to the illness and incapacity of both the attorneys for the defendants, he would not oppose a continuance of the trial of the action provided the defendants would agree to bear all of the costs sustained by the said plaintiffs, including the costs of .their transportation from their places of employment to Woodland, and return; that the court was satisfied that the attorneys for all parties in the case and the court well understood that all costs included all of the items of expense incurred by the said plaintiffs as thereinabove stated.