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Bivvins v. Unger

October 19, 1972

BIVVINS, APPELLANT,
v.
UNGER ET UX, RESPONDENTS



Appeal from Circuit Court, Columbia County. J. S. Bohannon, Judge.

VanNatta & Peterson, St. Helens, filed a brief for appellant.

Allen L. Fallgren and McKee & Fallgren, Portland, filed a brief for respondent.

In Banc. O'Connell, C.J.

O'connell

Plaintiff brought an action for assault and battery. The complaint contained a prayer for $300 damages and $400 as reasonable attorney's fees. Judgment was entered on a verdict of $25 in favor of plaintiff. Plaintiff filed a cost bill totaling $357, of which $300 was for attorney's fees, and the remainder for various disbursements. Upon defendants' motion, the trial court denied attorney's fees and disbursements. Plaintiff appeals.

At the outset it should be noted that under the relevant Oregon statutes, attorney's fees in a nominal amount*fn1 are allowed to the prevailing party and are

termed "costs." ORS 20.010 establishes this terminology:

"The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment or decree certain sums by way of indemnity for his attorney fees in maintaining the action or suit, or defense thereto, which allowances are termed costs."

Other expenses for which a party may receive compensation are called "disbursements." This is set forth in ORS 20.020, as follows:

"A party entitled to costs shall also be allowed for all necessary disbursements, including the fees of officers and witnesses, the necessary expenses of taking depositions, the expense of publication of the summons or notices, and the postage where the same are served by mail, the compensation of referees, and the necessary expense of copying any public record, book or document used as evidence on the trial."

It will be noted that ORS 20.010 makes a distinction between the attorney's fees agreed upon by the parties and attorney's fees allowed as a matter of course under the statute (ORS 20.070). Only the latter fall within the definition of costs.*fn2 It ...


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