Hislop v. Moldenhauer

1. Time fob Piling Objections to Cost Bill.— Objections toa cost bill should not be entertained after the lapse of five months from the two days limited by section 556, Hill’s Code, for filing such objections, unless it is shown that the delay resulted from mistake, inadvertence, surprise, or excusable neglect. 2. Appeal — Journal Entry.— The recitals of a journal entry as to the day on which a judgment was rendered cannot be contradicted in the supreme court by a certified memorandum kept by the clerk of the trial court.

Multnomah County: E. D. Shattuck, Judge. This was an action of forcible entry and detainer by Thomas Hislop against W. J. Moldenhauer, and is now here on the third appeal. The first appeal is reported in 21 Or. 208, and the second in 23 Or. 119. Some five months after the cost bill of defendant had been filed, the plaintiff moved to correct certain errors in the costs as taxed, and the question was urged on the second appeal, but as the record was not complete, the court refused to consider it: 23 Or. 122. After the mandate had been entered on the second appeal, the objections to the cost bill were renewed, and were in every particular allowed on the ground that the services for which the fees were claimed had never been rendered, thus reducing the costs by some ninety dollars. Plaintiff insists that the judgment was actually taken in the lower court on May 20, 1892, but by the neglect of the attorney to furnish the proper entry to the clerk, was written into the journal under date of May 24,1892, and in support of his claim produces the affidavit of the clerk, showing such to be the case. . The defendant insists that the date in the journal must control; that the cost bill, having been filed on May 28, 1892, was within the limit of the statute; and that the plaintiff should have objected to it within two days. No order was asked, or effort made, to correct the date of the journal entry. Defendant appeals.