Miller v. Highland Ditch Co.

Belcher, C. This is an appeal from an order of the court below refusing to retax the plaintiff’s costs.

It appears from the bill of exceptions that a duly verified memorandum of costs, a copy of which is set out, was filed by the plaintiff in proper time.

One of the items in the memorandum is as follows: “ Paid J. B. Pope for map introduced in evidence, adopted by judge in his findings, and made part thereof, five hundred dollars.”

Other items are for the attendance of witnesses a stated a number of days.

The defendants served and filed in due time notice of motion to retax the costs, and their objection to the item above quoted was: “ 1. That the same is not a proper charge, nor authorized by law to be included in plaintiff’s bill of costs; 2. That said charge is excessive, and far beyond the value of said map; that said map is of not any greater value than five dollars, and could not have cost the plaintiff herein a greater sum.”

[105]The objections to the other items were, that the charges were for a greater number of days than the witnesses were actually in attendance.

“ Thereafter the defendants’ said motion came on regularly for hearing before the court, both parties appearing by counsel, and plaintiff introduced no evidence whatever, whereupon the court refused to strike out any part of any of the said items of costs, and denied defendants’ said motion, to which ruling the defendants did then and there duly except.”

The respondent contends that in a case like this the burden is upon the party moving to strike out, and that as no evidence was offered at the hearing of the motion as to the circumstances under which the map was made and introduced in evidence, or as to its value, it must be presumed that the court below did not abuse its discretion in allowing the charge therefor to stand as made. And, in support of this position, Barnhardt v. Kron, 88 Cal. 447, is cited.

In that case a cost-bill was filed, and all the items in it were for the attendance of witnesses, and the fees of the sheriff, clerk, and reporter. A motion was made to re-tax the costs, by striking out each and every item thereof, upon the ground that none of the items were incurred by the respondent in establishing his defense to the action, but that each of them was incurred by his co-defendant. The motion was denied by the trial court, and on appeal it was held that the allowance or disallowance of items for the expenses and disbursements incurred upon the trial of an action must be left, in nearly every instance, to the discretion of the judge before whom the cause was tried; that there was nothing in the record showing that the court did not properly exercise its discretion in refusing to strike out the items objected to; and that the memorandum of costs was properly verified, “and, unless controverted, should control the decision of the court.”