King v. Allen , 29 Mont. 5 ( 1903 )

MR CHIEF JUSTICE, BRANTUY,

after stating the case, delivered, the opinion of the court.

1. No appeal lies from an order taxing costs. (Montana, Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 288, 10 Pac. 1114; Murray v. Northern Pacific Ry. Co., 26 Mont. 268, 61 Pac. 625.) The attempted appeal from the order must therefore be dismissed. The appeal from the judgment, however, properly presents for review the controversy of the parties, and the action of tire district court thereon.

2. Contention is made by the appellants that the memorandum. filed by them with the clerk of the district court, was prima facie evidence of the correctness of the various items set forth therein as necessary costs and disbursement and that the district court erred in not directing judgment for the whole amount claimed.

The rule is well established by the authorities that where, • under a statute or rule of cour^ a requirement is made that, in order to recover costs; the party claiming them must, within a specified! time, serve upon his adversary and file with the clerk a memorandum of the items thereof, duly verified, such memorandum! is prima facie evidence that the items were necessarily expended, and are properly taxable, unless, as a matter of law, they appear otherwise upon the face. The burden of overcoming this piñma facie case rests upon the adverse party, and the party filing the memorandum is required to furnish further proof only in rebuttal. Hence upon the. trial of a motion to tax costs, if the adverse party does not overturn the prima facie caise made by the verified memorandum, the objection should' be overruled. (Hibbard, v. Tomlinson, 2 Mont. 223; Elliott v. Collins, 6 Idaho; 157, 53 Pac. 453; City and County of San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56; Barnhart v. Kron, 88 Cal. 447, 26 Pac. 210; Colusa Parrot M. & S. Co. v. Anaconda. C. M. Co. (C. C.), 104 Eed. 514; Fitnam’s Tr. Pro. Sec. 669.)

Under the statute (Code of Civil Procedure, Section 1866) all the items called1 in question could properly be taxed, because this section, besides providing for the fees of witnesses and other disbursements, provides also. for “the reasonable expenses for making’ a map or maps if required and necessary to be used on trial or hearing, and such other reasonable and necessary expenses as. are taxable according to the course and practice of the court, or by express provision of law.” By an. express provision of law (Code of Civil Procedure, Section 1317) the costs of procuring an order of survey abide the result of the action, and are taxable against the losing party. If, therefore, no evidence at all had been introduced at (he hearing, the defendants would have been entitled to have all the items included in their judgment. The plaintiffs having assumed the burden, however, we must examine the record with this condition in miñd, and determine whether, as a matter of fact, the item) should have been taxed as -necessary disbursements, or ■whether, upon this theory, the court erred in reaching the conclusion it did

3. As has been said, the issue in the case upon the pleadings was as to the ownership of a, vein or lode and tire extent of the alleged trespass of the defendants. The complaint described the Silver Xing claim and the locality of the trespasses in general terms. The restraining parti of the orderg to- show that the survey was. necessary, and that a ma,pl was required to enable the witnesses to make intelligible to the court- their testimony touching the physical and geological facts as, they understood them. The map- itself was. offered in evidence, in connection with the testimony of the witnesses, in order that the court, might determine whether or not its use at the hearing would have been, necessary. Evidence was also- offered to. show thei reasonable cost of making the map. The court, upon objection, excluded all the evidence offered, except the fact that the map had been, made by the engineer of tbe defendants, and that it represented all the underground workings involved in the controversy. No. evidence was offered or introduced touching the item of $1 paid the sheriff for serving the subpoena, nor was any offered upon the item of $3 paid to> the witness who testified at the hearing for the survey ordter. It is manifest that if the court was justified in allowing the $;3 paid to the witness called to testify at the injunction proceeding, the fee paid to the sheriff for summoning this witness should also have been allowed. It is equally clear that when the court found upon the application for the survey order that the survey was necessary in order to enable the defendants to properly .present their case to the court, this was an adjudication of the costs attendant upon procuring the order, and the court was in error in disallowing the fee of $3 paid to the witness who* testified! on that hearing. ‘Whether or not the expense of making the mapi was reasonable or necessary in order to facilitate the hearing, upon the injunction proceeding was a question of fact, and upon the theory upon which the matter was presented to the court by the defendants, the court should have admitted all competent evidence tending to throw light upon thisi question. This would include the evidence of witnesses explanatory of what the map was intended to show, as well as their statements as to whether it correctly represented the facts intended; to be shown by it. In connection with this it was clearly competent to introduce the map itself, and also the testimony of witnesses tending to- show what was the reasonable cost of making it. It is inconceivable how the court could reach a just conclusion u,ppn the question under investigation without hearing and weighing this testimony, and it was clearly error to exclude it. The court evidently proceeded upon the erroneous idea that the burden was upon the defendants, and that, having failed to' show that these items were all necessarily expended in preparation for the hearing, they were not entitled to' be reimbursed.

Reference is made in the brief of counsel to rulings of the court upon particular parts of the evidence excluded. We shall not attempt to' notice these in detail. What we have already said we deem sufficient to guide the court in another hearing.

The judgment is reversed, and the cause is remanded, with directions toi the district court to proceed in, accordance with the views herein expressed.

Reversed and retnanded.