
    Argued January 11,
    reversed February 13,
    motion to retax costs denied March 13, 1923.
    SHAUGHNESSY v. KIMBALL.
    (212 Pac. 485; 213 Pac. 135.)
    Costs — Prevailing Party Fee Should be Taxed on Appeal, Whether or not Cost Bill Filed.
    Under Section 565, Or. L., providing that in the Supreme Court on appeal costs will be allowed to the prevailing party in the sum of $15, the prevailing party fee should be taxed by the clerk, whether the cost bill is filed or not, under rule 31 of the Supreme Court (173 Pac. xi), where the appeal is separate and distinct from another, in which the brief was used, and which were heard together.
    From Klamath: D. V. Kuykendall, Judge.
    In Banc.
    Plaintiff appeals from a judgment in favor of defendant for the sum of $250 with interest.
    Reversed. Motion to Retax Costs Denied.
    For appellant there was a brief and oral argument by E. L. Elliott.
    
    For respondent there was a brief over the names of Mr. W. H. A. Renner and Mr. John Beardsley, with an oral argument by Mr. Renner.
    
   BEAN, J.

As stated in plaintiff’s brief, the main facts, law and procedure in this case are practically the same, except as to minor details, as those in the case of J. Shaughnessy v. J. Curtis Kimball and Jessie Y. Kimball, in which an opinion has been this day rendered. What we said in that opinion in regard to the motion and affidavit for change of judge applies to this case. For the reasons therein stated the judgment of the trial court is reversed and the cause remanded.

Reversed and Remanded. Motion to Retax Costs Denied.

Mr. W. H. A. Renner and Mr. John Beardsley, for the motion.

Mr. E. L. Elliott, contra.

In Banc.

Motion to retax costs denied March 13, 1923.

On Motion to Retax' Costs.

(213 Pac. 135.)

BEAN, J. — Defendant objects to the item of “prevailing party fee,” $15, in plaintiff’s cost bill as not warranted by law, presumably for the reason that a similar case, that of J. Shaughnessy v. J. Curtis Kimball and Jessie Y. Kimball, in which the brief was combined with the present case, was heard at the same time. Section 565, Or. L., provides that in the Supreme Court, on appeal, costs shall be allowed to the prevailing party in the sum of $15. This should be taxed by the clerk, whether a cost bill is filed or not: Rule 31 of the Supreme Court. This rule is in harmony with Section 569, Or. L.

The appeal in the present case was separate and distinct from that in the other case mentioned, and plaintiff herein is entitled to the statutory fee. The defendant is not entitled to have the costs retaxed. The bill of costs will stand as filed herein, including the $15, prevailing party fee. Motion Denied.  