The opinion
*520 Decided 3 June, 1901.
On Motion eor Rehearing.
Mr. Justice Wolverton
delivered the opinion.
9. It is stoutly insisted by the respondent, in his petition for a rehearing of this cause, that the action for money had and received to the use and benefit of another proceeds upon the idea that the sum sued for, or, rather, the amount in the hands of the defendant at the time of the institution of the action, is a “single or entire demand and cause of action, ’ ’ notwithstanding it may be the accumulation of several amounts received at different times, and must necessarily be so treated and regarded in formulating the pleadings. The position, however, is untenable, in view of the fact that under the Code, as construed by this court, the mode of statement employed by the “common counts” known to the common law is inappropriate and insufficient; it being deemed essential to set out the facts from which the cause of action arises, and that the proofs must extend to and comprehend all the items going to the establishment of such accumulation. There is nothing peculiar about the action that requires a procedure different from that of any other form of action that might be employed. It is common in indebitatus assumpsit to allege that defendant was on a day named indebted to the plaintiff in a sum named, and that he has not paid the same or any part thereof: Phillips, Code Plead. § 98. But, if any payment has been made upop the account, good pleading, under our practice, requires that the gross sum be stated as the amount in which the defendant is indebted, and also the payments, if any, at least in the aggregate, so that the amount due becomes a matter of deduction apparent upon the face of the complaint. This brings into the investigation the entire ac *521 count, and tlie balance, when ascertained, is the amount subject to recovery. The complaint in the case at bar proceeds upon the theory that there was an account between the parties as it is therein alleged ; that at various times between January 1, 1896, and June 1, 1897, the assignors of plaintiff advanced and paid to the defendants divers amounts of money, aggregating a sum named. The investigation necessarily embraces all these items, thereby requiring a computation to determine what plaintiff is entitled to recover, so that the amount sued for can not be regarded as a “single or entire demand and cause of action.” It is a resultant factor, and the cause of action must be based upon the facts out of which it arose. It is quite true that the action for money had and received arises ex lege; that is to say, the requisite facts being established, the law fixes the privity, and entails the obligation to respond, and the fiction of a promise is no longer necessary to be employed in its support. We can conceive of no reasdn, however, why the action may not proceed by analogy as upon an account; the only difference being that, in the one case, the law raises the obligation to refund that which has been received, while in the other the privity and promise is established by the undertaking of the parties, express or implied. In this view, the entire account, not the single demand named in the complaint as the amount sought to be recovered, became a matter for establishment by proof. It affords or gives basis to the cause of action, and, as the plaintiff has seen fit to so treat it and sue upon it, he can not be permitted to recover upon it by piecemeal; that is, to recover as to part by his complaint and recoup as to the balance in his reply. He should have sued upon the entire account, and given credit for the money returned, and the subsequent pleadings and proofs would have proceeded as naturally and logically as in any other form of *522 action. This is the' pivotal question in the case; all others hinge upon it.
The question of variance has been discussed, in the main opinion, but this further observation may be made : The accounts offered and admitted are incompetent, as they tend to establish a reply which constitutes in its purpose and effect a clear departure from the ground taken in the complaint. The purpose was theretofor obscured, but the proffer revealed it, so that it was error for this reason,’ if for none other, to admit them over the objection of the defendants. It is suggested that the plaintiff had never come to his rebuttal or the establishment of his defense set up by the reply, the defendants having rested without offering any testimony upon their part. The accounts, however, it must be admitted, had a potent tendency to prove their case as set up by the answer, but they at the same time countervailed it by establishing the allegations of the reply. They were not competent, therefore, at any stage of the trial. The first separate defense is in the nature of a plea of settlement, and the third is a set-off, in view of the theory adopted by the plaintiff as exhibited by his complaint.
Another matter should be mentioned in disposing of the petition for rehearing. By inadvertence, the writer omitted the word “other” from the opinion at one place in attempting to quote the language of the answer, namely, “any other sum or sums whatever,” and the correction will be made supplying it. There can be no significance attached to this misquotation, as the conclusion reached was based upon the language employed in the answer, and not upon that inadvertently used. This is quite apparent, however, as the language is elsewhere twice correctly quoted. Rehearing Denied.
Mr. Edward B. Watson, for tlie motion.
Mr. William W. Cotton, contra.
Decided 12 August, 1901.
On Motion to Vacate the Judgment eor Costs.
Mr. Justice Moore
delivered the opinion.
10. . This is a motion to vacate a judgment of this court in respect to the costs and disbursements. The opinion was handed down and judgment pronounced April 8, 1901. Two days thereafter the defendants filed a verified statement of the disbursements to which they claimed to be entitled, and on or before the twelfth of that month, as appears from an inspection of the judgment roll, the judgment was entered in the journal, to the effect that the judgment rendered in the court below was reversed, and that the appellants recover their costs and disbursements in this court upon the appeal, allowed and taxed at $-. The plaintiff’s counsel, on April 27, filed a petition for a rehearing, which was overruled June 3, and on the twenty-first of the latter month they filed this motion, and four days thereafter filed objections to said claim for costs and disbursements. It is contended that, as the parties have twenty days after the filing of the opinion to petition for a rehearing, the effect of which is to suspend all further proceedings until the petition is disposed of (Sup. Ct.' Rules 20, 21, 35 Or. 587 , 602), the clerk was not authorized to enter the judgment until the petition for rehearing was denied, and hence the-entry should be vacated. In Houston v. Williams, 13 Cal. 24 ( 73 Am. Dec. 565 ), it was held that a decision of a court is its judgment, the opinion is the reasons given therefor. The former, being entered of record immediately, can only be changed upon a petition for a rehearing or a *524 modification. The latter is the property of the judges, subject to their revision, correction, and modification until it is transcribed in the record with the consent of the writer, when it ceases to be subject to change, except through regular proceedings before the court by petition. “The rendition of a judgment,” says Mr. Black in his work on that subject (volume 1, § 106), “is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy, as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation.”
A judgment is as final when pronounced by the court as when entered and recorded by the clerk : 18 Ency. PI. & Pr. 438. When this court on April 8, 1901, announced, in handing down the opinion, that the judgment of the lower court was reversed, that‘instant our judgment, to all intents and purposes, became final; and the clerk, in the performance of his duty, having made a note of such decision when it was pronounced, thereafter amplified his memorandum to suit the facts of the case as made by the transcript, and thereupon entered it of record as of the date it was rendered. Plaintiff's counsel, in support of the principle for which they contend, cite the case of Uhe v. Chicago, M. & St. P. Ry .Co. 4 S. D. 505 ( 57 N. W. 484 ), wherein it was held that the legal effect of an order that all proceedings be stayed for a definite time is to stop further progress in the case at the point where such order attaches. The justice of such a rule must be conceded, but it can have no application *525 to the case at bar, for no order was made at the time the judgment was pronounced, whereby further proceedings herein were suspended. Under the provisions of Rule 21 of this court it is the filing of a petition for a rehearing that suspends further proceedings, without which there can be no interregnum in the course prescribed to secure the fruit of the judgment; for the order of the court staying further proceedings never attaches until the petition for a rehearing is filed. The clerk, therefore, properly entered the judgment as of the date when it was pronounced.
11. It is contended that, a new trial having been ordered herein, the costs upon the appeal was a matter within the discretion of the court (Hill’s Ann. Laws, § 552, subd. 3), and, nothing having been said in the opinion respecting costs, the clerk had no authority to tax them, and hence the judgment in this respect should be vacated. We do not understand that it is necessary to state in an opinion the details of a judgment or decree which the clerk is required to enter. Rule 23 ( 35 Or. 587 , 603,) of this court is as follows : “It shall be the duty of the clerk, in taxing costs, to allow to the prevailing party the actual costs of printing his abstract or brief (not to exceed $1.00 a page, including cover, when printed in pica, and $1.25 per page if printed in small pica,) unless in equity cases, for special reasons apparent in the record, it is otherwise ordered.” This rule is an exercise of the court’s discretion in each case where a new trial is ordered, and governs the clerk in the taxation of costs, unless otherwise directed by the court.
12. The defendants having filed a verified statement of the disbursements to which they claim to have been entitled within five days from the entry of the judgment (Hill’s Ann. Laws, § 556), and no objection thereto hav *526 ing been filed within the time prescribed by law, in the absence thereof the clerk was without discretion in the allowance of costs and disbursements and obliged to tax them as demanded in the cost bill: Hill’s Ann. Laws, § 556. It follows that the motion is overruled.
Motion to Vacate Overruled.
Decided 23 December, 1901.
On Motion to Retax Costs.
Mr. Justice Moore
delivered the opinion.
This is a motion to retax costs. Judgment having been rendered April 8, 1901, against the plaintiff, the defendants two days thereafter filed a verified statement of their disbursements, which they claimed to be entitled to recover, containing, inter alia, the following items :
Cost of transcript on appeal________________________________________$816 15
Cost of printed abstiact (500 pages)________________________________ 500 00
Cost of. printed briefs (158 pages)___________________________________ 158 00
The clerk entered a judgment on the twelfth to the effect that the appellants recover their costs and disbursements in this court upon the appeal, allowed and taxed at $-. Plaintiff’s counsel filed a petition for a rehearing on the twenty-seventh, which was denied, and a motion to vacate the judgment as to costs and disbursements, filed June 21, on the ground that it had been prematurely entered, was also denied. Objections to said items of the cost bill were filed June 25, supplemented by tlie affidavit of Lansing Stout, deputy clerk of the circuit court of Multnomah County, showing that the sum charged for the transcript was $251.50, upon which the appellants were credited with $82.65 for copies furnished by them and included therein, and by the affidavit of S. B. Schwab,, a member of the firm which printed the abstract and brief, to the effect that the sums paid in full settlement *527 therefor were $807.50 and $128.50, respectively. Defendants’ counsel on July 5, in pursuance of an order of this court extending the time for that purpose, filed a counter affidavit supplemented by the following statement of account :
State of Oregon, County of Multnomah, in the Circuit Court.
Thos, J, Hammer v. F. O. Downing et al.
Woodward & Palmer to Dan J. Moore, Clerk of the Circuit Court, Dr,
September 23,1898. Copying transcript, etc.____________________$346 15
Or___________________________________________ 177 30
September 22, ’98. Received payment___________________________$168 85
Daw J. Moore.
It appears from the latter affidavit that this bill is in the handwriting of the deputy, but that the indorsement of the receipt of payment, and the signature appended thereto, were made by the clerk ; that the affiant called upon Stout and showed him said statement, and was informed by him that the books in the clerk’s office contained a memorandum of the facts as stated in his affidavit made at plaintiff’s request; that the affiant also saw Dan J. Moore, who told him that said bill was correct and made, as indicated, at the request of C. C. Palmer, one of defendants’ attorneys, to include the cost of copies of jjapers furnished by him, and used in making the transcript. The clerk August 13, 1901, allowed the defendants’ cost bill in full, on the ground that the objections thereto were not filed within the time prescribed by law, and two days thereafter plaintiff’s counsel filed a motion to retax the costs.
13. The statute prescribing the time and manner of filing a verified statement of the costs and disbursements necessarily incurred in the trial of a suit or action in the lower court is to be regarded as the rule of procedure in this court: . Hill’s Ann. Laws, § 556 ;' Rader v. Barr, 37 Or. 453 ( 61 Pac. 1027, 1127 ).
*528 14. It is argued by plaintiff’s counsel that, although the objections to the cost bill were not filed wfithin the time prescribed by law, defendants, haying filed a counter affidavit, thereby waived the default, while defendants’ counsel insist that the action of this court in overruling the motion to set aside the judgment in respect to the costs was an adjudication upon the matter now in issue. The former motion was to vacate the judgment as far as it -related to any costs, while this motion concedes the right of the defendants to recover disbursements necessarily incurred, but denies that the sums claimed for the several items thereof controverted by the objections are correctly stated. ' The former motion challenged the right of the clerk to enter any judgment for costs within the time allowed to file a petition for a rehearing, and not the amount thereof. No item of the cost jfill was contested upon the former motion, and the evidence necessary to support it would not be received upon the motion under consideration. When the plea of res adjudicata is interposed, the admissibility of the same evidence to support both cases is one of the chief tests in determining whether an adjudication in one action is a bar to another : Taylor v. Castle, 42 Cal. 367 ; Duncan v. Stokes, 47 Ga. 593 ; Rice v. King, 7 Johns. 20 ; Brown v. Cain, 79 Ind. 93 ; Hahn v. Miller, 68 Iowa, 745 ( 28 N. W. 51 ). Tested by this rule, the motion to rétax the costs was not involved in the former motion, and the court’s refusal to vacate the judgment in respect thereto was not an adjudication upon the cost bill, nor a determination that any item thereof was reasonable.
15. This brings us to a consideration of the question whether the defendants, by filing a counter affidavit in support of an item of the cost bill, waived their right to insist that plaintiff’s objections should have been filed *529 within the time prescribed by law. The rule is well settled that a party may waive any provision of a statute designed for his benefit, unless by doing so the rights of the public are necessarily involved : Tombs v. Rochester, etc. R. R. Co. 18 Barb. 583 ; White v. Insurance Co. 4 Dill. 177 (Fed. Cas. No. 17545); Shutte v. Thompson, 82 U. S. (15 Wall.) 151 ; Keyser v. Pollock, 20 Utah, 371 ( 59 Pac. 87 ). Mr. Justice Raparlo, in Phyfe v. Eimer, 45 N. Y. 102 , in discussing this subject, says: “A party of full age, and acting sui juris, can waive a statutory or even a constitutional provision in his own favor, affecting simply his property or alienable rights, and not involving considerations of public policy.” The time allowed by law to object to a cost bill is a limitation upon the right to controvert any item thereof, and is a statutory provision designed for the benefit of the prevailing party to a judgment. An appearance for the purpose of objecting to irregularities does not waive them, but, if the appearance is for any other purpose, it is a waiver, and no objection can afterwards be taken to the prior defects : Lane v. Leech, 44 Mich. 163 ( 6 N. W. 228 ). Thus, in State ex rel. v. Messmore, 14 Wis. 115 , it was held that a stipulation for further time to plead was an appearance in an action, and waived all objection to the form of the summons. In the case at bar, the defendants, having filed a counter affidavit in response to the objections interposed to their cost bill, thereby waived the right to insist that such objections had not been filed in time ; * and, this being so, the question to be considered is the reasonableness of the controverted items.
16. The evidence clearly shows that the defendants incurred on account thereof no more than the following *530 sums: Clerk’s fees in preparing transcript, $168.25; printing abstract and brief, $307.50 and $128.50, respectively. Their cost bill will therefore be reduced to the -extent of $399.90 on account of the overcharges.
17. It is maintained by plaintiff’s counsel that the abstract and brief contained much immaterial matter, the publication of which is not a proper charge, and that by eliminating the unnecessary part the abstract and brief would be reduced to seventy-three and thirty-nine pages, respectively. The abstract contains an original and amended answer, the former containing twenty-two and one half pages, the cost of which, at the rate paid therefor, is $13.90, which, in our judgment, is not a proper charge, as the original answer was rendered nugatory by the amended pleading,' and the expense for the publication thereof is not a taxable disbursement under Rule 24 : Albert v. Salem, 39 Or. 466 ( 66 Pac. 233 ). The cost bill will therefore be further reduced to the extent here indicated, but in other respects approved. The brief may be somewhat voluminous, but the size thereof must be left largely to the discretion of counsel, to be determined by what their judgment may dictate the importance of the case demands. Costs Retaxep.
Note. — See Smith v. Day, post.