61 P. 1126 | Cal. | 1900
This is an appeal from an order refusing to hear the motion of the defendants to tax the cost bill filed by the plaintiff. The defendants within the proper time served on the plaintiff a notice that they were dissatisfied with the cost bill filed by the plaintiff, and that they would move the court to strike out certain items therein, and to retax said costs. The hearing of the matter was continued *245 from time to time by stipulation of counsel, and on October 25, 1897, in open court, counsel for defendants applied orally to the court for an order as prayed for in the notice of motion to strike out and to tax said cost bill. Counsel for plaintiff thereupon objected to the reading of the notice of motion, or to the hearing of any application to tax costs, or to strike out the memorandum of costs, on the ground that no written motion had been presented or filed, and the court sustained the objection made by counsel for plaintiff on said ground.
The action of the court in refusing to act upon defendants' motion is based upon a literal construction of that portion of section
The reason and intention of the lawgiver will control the strict letter of the law in interpreting the same, when to adhere to the strict letter would lead to injustice or absurdity. The substance of the law as it stands is that the party who is dissatisfied with the bill of costs as filed must within a certain time make his objection known and the grounds on which he will move the court to correct or strike out the cost bill. When this is done by the proper notice in writing, served and filed, specifying the time when the application to the court or judge will be made, the object of the law would seem to have been complied with, and no useful purpose would be subserved by requiring the motion to be committed to writing instead of being made orally to the court or judge in the usual manner. It is one of the maxims of the law that it respects form less than substance. (Civ. Code, sec.
We think the court below erred in refusing to hear the motion to retax the costs on the ground that said motion was not made in writing, and the order to that effect is reversed.
*247Harrison, J., Garoutte, J., concurred.