# State v. Keelen

> Oregon Supreme Court · January 10, 1922 · 103 Or. 172

URL: https://www.frixlaw.com/law-library/cases/6907588

## Case

- **Full name:** STATE v. KEELEN
- **Court:** Oregon Supreme Court
- **Decided:** January 10, 1922
- **Citations:** 103 Or. 172; 203 P. 306; 1922 Ore. LEXIS 143
- **Precedential status:** Published
- **Opinion:** On motion to strike
- **Judges:** McCourt
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6907588

## How later opinions describe it (automated extraction)

- noting that possession of property may be actual or constructive

## Opinion text

Objections overruled February 7, 1922.
On Objections to Cost Bill.
( 204 Pac. 164 .)
Objections Overruled.
In Banc.
PER CURIAM.
— This is a criminal action. Defendant was indicted, tried and convicted in Union County. Defendant appealed to this court and upon such appeal, the judgment of conviction against him was reversed; whereupon defendant filed a cost bill in which he claims costs and disbursements amounting to $140.95.
The state, through the district attorney of Union County, objects to defendant’s claim for costs and disbursements upon the grounds that the statute does not make the state liable for defendant’s costs, and that a judgment for costs cannot be given against the county, because it is not a party to the action. *193 Objection is also made that the items in defendant’s cost bill for printing the abstracts and briefs are in excess of the amount allowed for that purpose under the rules of this court.
17. Defendant cannot recover the costs and disbursements incurred by him in the prosecution of his appeal, unless the right thereto is given by Chapter 88, Session Laws of 1921. That statute provides:
“In all criminal actions the county shall be liable for costs on appeal to the Supreme Court and with like effect as in the case of natural persons, upon reversal of the judgment of the lower court; and such costs shall be paid in the first instance by the county from which the appeal is taken.”
The foregoing enactment is awkwardly phrased and its provisions are not as definite as they should be in view of the subject matter; but it is the duty of the court to give effect to the statute notwithstanding its imperfections, if it is reasonably possible to do so.
A statute imposing liability for costs upon the state or a county in cases where the state or a county is a party was in force at the time of the adoption of the foregoing enactment, which statute contained the following provisions:
“In all actions or suits prosecuted or defended in the name and for the use of the state, or any county or other public corporation therein, the state or public corporation shall be liable for and may recover costs in like manner and with like effect as in the case of natural persons. When a natural person is joined with the state as plaintiff, or the action is upon the information of such natural person, he shall be liable in the first instance for the defendant’s costs”: Sec. 577, Or. L.
18. This court, in the case of Eisen v. Multnomah, County, 31 Or. 134 ( 49 Pac. 730 ), held that Section *194 577, Or. L., applied to civil suits and actions, and did not empower the court to award costs in a criminal action to a defendant who was acquitted on a trial in the Circuit Court; that in Oregon there was no statute entitling a defendant in a criminal action to recover costs incurred by him, and that without such a statute expressly conferring the power, a court could not award costs to a defendant in a criminal action.
The decision in the Eisen case was followed in the later ease of State v. Amsden, 86 Or. 55, 61 ( 166 Pac. 942 , 167 Pac. 1014 ), and therein the right of a defendant in a criminal action to recover his costs upon appeal was denied.
There was also in force at the time of the adoption of Chapter 88, Session Laws of 1921, a statute authorizing the court to tax against a defendant, in case, of a conviction, the costs incurred by the prosecution, which statute reads as follows:
“The costs and disbursements in a criminal action or proceeding are paid to the person rendering the service by the proper county; but in case of a judgment of conviction, such costs and disbursements must be taxed against the defendant.” Sec. 3681, Or. L.
It is manifest that Chapter 88, Session Laws of 1921, was designed to supplement Sections 577 . and 3681, Or. L., so as to allow a defendant in a criminal action, who on appeal succeeds in reversing the judgment of the lower court, to recover the costs incurred by him on such appeal, and to require the county from which the appeal is taken, to pay the same.
The act does not authorize judgment against the state for defendant’s costs, so none can be given: State v. Ganong, 93 Or. 440, 454 ( 184 Pac. 233 ); Leadbetter v. Price, post, p. 222 ( 202 Pac. 216 ).'
*195 The county is not a party to a criminal action upon appeal, and it is well settled that in the absence of statutory authority therefor, a judgment for costs and disbursements cannot be given against one not a party to an action: 7 R. C. L. 789; 15 C. J. 97.
The legislature, however, may require one not a party of record, but beneficially interested, in or directly related to litigation, to pay the costs incurred by the prevailing party in such litigation. Section 579, Or. L., imposing the costs of an action upon the attorney for a nonresident plaintiff, is a statute of that character.
The state acts through and by the county in the enforcement of criminal statutes, and it is within the legislative power to require a county in which a criminal action arises, to pay the costs in such action on appeal, including those made by defendant: 15 C. J. 334-338.
In several states, the county from which an appeal is taken, though not a party to the action, is required by statute to pay the defendant’s costs, or some items thereof, when the latter prevails upon such appeal. For instance, the statutory provision in Iowa is as follows:
“In case the judgment of the trial court is reversed or modified in favor of the defendant, on the appeal of defendant, he shall be entitled to recover the cost of printing abstract and briefs, not exceeding one dollar for each page thereof, to be paid by the county from which the appeal was taken.”
In the case of State v. Dorland, 106 Iowa, 40 ( 75 N. W. 654 ), the Supreme Court of Iowa, construing the foregoing provision of the statute of that state, said:
“We come now to the second question. The statute says defendant ‘shall be entitled to recover the cost *196 of printing abstracts and briefs.’ It is manifest, we think, that he is to recover it upon a reversal or modification of the judgment; and the only way in which he can do this is to have them taxed as costs. When so taxed, they are to be paid by the county from which the appeal is taken. # * If not so paid, they may undoubtedly be recovered by suit. ’ ’
Chap. 88, Session Laws of 1921, expressly declares that the county from which an appeal is taken shall be liable for and pay costs upon appeal to the Supreme Court, and with like effect as in the case of natural persons, upon reversal of the judgment of the lower court; but like the Iowa statute, it does not expressly authorize a judgment for costs against the county and in favor of the defendant. The costs that a natural person is liable for upon reversal of the judgment of the lower court is the costs incurred by, or awarded by statute to, the prevailing party, and such costs are determined and taxed by this court.
19. Under the statute, the liability of a county for costs upon the reversal of an appeal in a criminal action is to be determined in the same manner — that is, by taxation thereof in this court, and when so taxed, the county from which the appeal is taken is liable for and required to pay the amount thereof. It is not necessary to determine whether the taxation of costs in such a case is a judgment in the strict legal sense. The word “ costs ” as used in the statute, when considered in connection with Chapter 322, Laws of 1921, includes the necessary disbursements upon appeal.
The district attorney represents the county, as well as the state, in every criminal action, and that officer can readily protect his county against unfounded or excessive claims for costs made in this court.
*197 The claim of defendant for printing abstracts and briefs does not exceed the maximum rate allowed by the rules of this court. (See Rule 29, Rules of the Supreme Court, effective March 15, 1921.)
It follows that the objections to defendant’s cost bill are overruled. Objection Overruled.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6907588. Public record. Not legal advice.