Mitchell & Lewis Co. v. Downing

Citations

• 23 Or. 448
• 32 P. 394
• 1893 Ore. LEXIS 44

Syllabus

<p>1. Nonsuit — Costs and Disbursements — Code, £ 246. — A court may in its discretion grant a nonsuit without requiring payment of the costs, but the rule is that the proper charges of the officers of the court must be paid as a condition precedent to voluntary dismissal; and if such charges are not paid, it is the duty of the court to render judgment against the plaintiff for their amount.</p> <p>2. Attachment — Sheriffs—Expense of Keeping Attached Property.— The expense of keeping attached property, under the Oregon Code, is neither a cost nor a disbursement; but the court should see that the reasonable charges of its officers are taxed in the cost bill against the plaintiff. The reasonableness of the charges should he determined by the court, upon notice to the plaintiff and upon proper proof. Schneider v. Sears, 13 Or. 69, cited and approved.</p> <p>3. Sheriff’s Expenses — Estoppel.— Where a sheriff claims ninety-four dollars fees, and the action is agreed to be settled on the basis of that charge, a larger amount ought not to be allowed on a claim put in after the motion to dismiss has been filed, without a trial by the court.</p> <p>4. Appeal — Motion for New Trial — Final Order — Code, £ 535. — While a motion for a new trial is pending, there is no “final order” from which an appeal can be taken. The six months limited for an appeal begins to run from the time the motion for a new trial is overruled.</p> <p>5. New Trial — Discretion of Court.— Amotion for a new trial is always addressed to the sound discretion of the trial court; but in this case the record shows excusable neglect, and the judgment should have been set aside.</p>