Lemmons v. Huber

Mr. Justice Bean after stating the facts in- the foregoing terms delivered the opinion of the court. 1. Plaintiff’s motion for a retrial of the issues as made by the pleadings in the justice’s court was properly denied. A final judgment, so far as the merits of the case were concerned, was made and entered March 16th. The appeal was not taken until the 8th of the following May — more than thirty days thereafter, and not within the time provided by statute: B. & 0. Comp. § 2239. A judgment is final for the purpose of an appeal when it determines the rights of the parties : State v. Security Sav. Co. 28 Or. 410 (43 Pac. 162). The justice’s court by the judgment of March 16th finally determined the rights of the parties before it, so far as the merits of the case were concerned. It then decided that the plaintiff had failed to sustain the issues of his complaint by his testimony, dismissed the action, and entered judgment against the plaintiff for costs and disbursements ; and this was a final judgment. The controversy over the disbursements did not delay the entry of the judgment, nor did the final decision of that question amount to a modification of the judgment, or extend the time in which to appeal: Wilson v. Palmer. 75 N. Y. 250; Hewitt v. City Mills, 136 N. Y. 211 (32 N. E. 768). The costs were but a mere incident to the judgment. The proceedings subsequent to its rendition were merely for the purpose of ascertaining the amount of the disbursements to which the defendant was entitled, and they did not alter, modify, or affect the judgment in any way. The fact that the justice seems prematurely to have entered in the judgment the amount of the disbursements, as shown by the cost bill first filed before the objections thereto had been disposed of, cannot in any way affect the question. 2. The appeal, although not probably so intended, merely operated to bring up for review the judgment of [285] the justice’s court taxing costs, and on such an appeal the original judgment cannot be attacked or reviewed : Purvis v. Kroner, 18 Or. 414 (23 Pac. 260). It is true there is in the record no formal motion to retax costs in the justice’s court, but the docket entry shows that the question was disposed of by that court sitting in a judicial capacity, both parties to the litigation appearing, and it is” from the judgment rendered on such hearing that the appeal was taken. 3. It has been suggested that an appeal would not lie from the taxation of disbursements in a justice’s court, and therefore the circuit court was in error in affirming the judgment of that court in relation to the taxation of costs. The Justice’s Code contains no special provisions for the taxation of disbursements, but Sections 2200, 2237, B. & G. Comp., would seem to make the general statute in relation to the taxation of disbursements in courts of record applicable to justice’s courts. This question was not discussed in the briefs, and was not particularly urged at the argument, nor is it very material in this case, as the plaintiff was not seeking by- the appeal to review the judgment of the justice’s court in the matter of the taxation of costs, and makes no question about its correctness. Judgment affirmed. Affirmed.