Barkly v. Copeland

Foote, C.

— This is an appeal from an order refusing to retax a bill of costs presented by the defendant, who had succeeded in the action. There had been two trials of the case, and on each trial the evidence had been transcribed by the short-hand reporter. In the first instance, this was done upon the order of the court; at the second trial, it was done upon the order of the defendant, without any from the court. It is not entirely clear how much of the amount due to the short-hand reporter for the first transcript was paid by defendant and plaintiff, but it appears as if each one had paid half the fees. As this transcription was made upon the order of the court, *494 but without any direction as to how the fees due therefor should be proportioned between the parties, and paid, each side should have paid half, as they did. “ In cases where a transcript has been ordered by the court, the fees for transcription must be paid by the respective parties to the action, in equal proportions, or by such of them, and in such proportions, as the court, in its discretion, may order.” (Code Civ. Proc., sec. 274; Amend. Codes 1880, p. 54.) By the order of the court, this half of the fees thus paid by the defendant in the first instance became a necessary part of the costs and disbursements incurred by him in defense of the action. He was therefore entitled to recover it from his adversary, against whom he obtained judgment.

As to the second item, which was $559.40, paid by the defendant for the second transcription, he could not recover that, or any part of it, from the plaintiff, as neither the latter nor the court had ordered it, but the defendent alone. In another part of section 274 of the Code of Civil Procedure as amended in 1880, it is said: “The party ordering the reporter to transcribe any portion of the testimony or proceedings must pay the fees of the reporter therefor.” The court should have retaxed the defendant’s bill of costs, and struck therefrom the item of $559.40, above mentioned. For these reasons, we advise that the order appealed from be reversed, and the court below directed to retax the bill of costs as herein indicated.

Belcher, C. C., and Hayne, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the order appealed from is reversed, and the court below is directed to retax the bill of costs as therein indicated.