Opinion
No. 179420
Decided June 10, 1969.
Costs — Defined — Fees to be collected by clerk — Only costs fixed and taxed by statute — Expenses of depositions not included.
1. Costs are the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statutes authorize to be taxed and included in a judgment.
2. Since the expenses of taking a deposition are not among the fees designated by Section 2303.20, Revised Code, to be charged and collected by the clerk of courts, a judgment entry requiring a party to pay the costs of such action does not include payment of such expenses.
Mr. Leo Waldman and Messrs. Waldman, Sperling Pazol, for plaintiff.
Mr. David C. Comstock and Messrs. Pfau, Pfau, Comstock Springer, for defendant.
This cause came on to be heard on the motion of the plaintiff to reassess costs in the within action.
The costs in question represent the expense of depositions which were taken of the plaintiff and the defendant.
There have been many court of appeals decisions concerning the propriety of taxing the expense of the taking of depositions as part of the court costs in an action.
The consensus of the courts of appeals seems to be that the expense of depositions may be included in costs if the depositions are used. Maranda v. Dugan, 73 Ohio Law Abs. 471; Searles v. Union Central Life Ins. Co., 55 Ohio App. 85; Thornton v. Mid America Fin. Loan Co., 8 Ohio App.2d 229; Shaw v. Ohio Edison Installation Co., 9 Ohio Dec. Rep. 809; Fairchild v. Lake Shore Elec. Ry. Co., 101 Ohio St. 261.
The confusion surrounding this problem has, in this court's opinion, been fully and finally settled in the case of Benda v. Fana, 10 Ohio St.2d 259, decided June 7, 1967, wherein the court defines "costs" as follows:
"Costs are generally defined as the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statutes authorize to be taxed and included in the judgment."
On page 263 of the opinion, the court states:
"The costs that may be fixed and taxed in a civil action in Ohio are specifically set out in the Revised Code. The provisions of Sections 2311.17 and 2311.18, Revised Code, allowing costs, while worded somewhat differently, nevertheless refer to those costs that are fixed and taxable according to statute. They do not include expenses of litigation that are not specifically provided for by statute. Thus, `costs' are not synonymous with expenses unless expressly made so by statute."
Fees charged and collected by the clerk are those set forth in Section 2303.20, Revised Code.
An examination of the "costs" there enumerated does not disclose any authority for the clerk of courts to collect the expense of depositions.
Section 2319.27, Revised Code, although providing for the payment of costs in the taking of depositions, makes no provision for the clerk of courts to collect such costs.
It is therefore the opinion of this court that the word "costs" refers only to the costs which are fixed and taxed according to statute, and not to the expense of litigation.
The court suggests that before entries of "settled at plaintiff's costs" or "settled at defendant's costs," counsel should advise themselves as to what costs are to be included under the entry.
Motion denied.