16 Cal. 403 | Cal. | 1860
Baldwin, J. concurring.
This is an action to quiet the title to certain land in the county of Alameda. The land is divided into three tracts, one of which contains two hundred and twenty-three acres, and the other two, one hundred and eleven acres each. Chapin and Mastick, the plaintiffs, and Hibberd and Freaner, defendants, are the only parties interested in the controversy. Chapin claims to be the owner of the two tracts of one hundred and eleven acres, and Mastick claims the tract of two hundred and twenty-three acres. Hibberd claims all three of the tracts, and the tract of two hundred and twenty-three acres is also claimed by Freaner. The land belonged originally to William W. Chipman and
First in order, is a judgment in favor of Martin C. Briggs and James McGowan, rendered on the twenty-second of August, 1854. This is a judgment for costs, and it is admitted that no memorandum of the costs was delivered within the time limited by the statute. The judgment, as entered in the judgment book, recites this fact, but includes certain fees which had been paid to the officers of the Court; and it is contended that these fees were properly inserted in the judgment. Their insertion was a mere ministerial act of the Clerk, and the validity of this act depends entirely upon the authority for its performance. The recovery of costs is a matter regulated exclusively by statute, and the mode pointed out for that purpose must be strictly pursued. If the provisions upon the subject, in force at the time of the rendition of this judgment, were not complied with, the fees were improperly inserted, and to that extent the judgment cannot be maintained. The Practice Act, as it then stood, provided that the prevailing party should be allowed certain sums, by way of indemnity for his expenses in the action, and that the sums so allowed should be termed costs. (Com. Laws, sec. 494.) For the purpose of recovering the costs, the party was required to deliver to the Clerk of the Court a memorandum of the items; and it was provided that he might include in the costs all necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, expenses in taking depositions by commission or otherwise, the compensation of Referees, and the fees paid on the commencement of the action, or on filing a notice of appeal. The memorandum, accompanied by an affidavit of its correctness, was required to be delivered within twenty-four hours after the rendition of the verdict, and if not so delivered, it was declared that the costs should be deemed waived. (Id. 610, sec. 510.) It was provided that the Clerk should include in the judgment entered up by him, the costs, etc. We do not see how there can be any difference of opinion as to the construction of these provisions. The successful party was allowed certain sums, by way of indemnity for his expenses, and these allowances were denominated costs. No distinction was made between the fees of officers and other expenses, and disbursements of every character were placed
There is another view of this judgment which is equally fatal. The Clerk had no right to insert the costs after the judgment was entered up and the record completed. The language of the statute was, that he should include the costs in the judgment, and not that he should enter the judgment and at some subsequent period insert the costs. His authority terminated with the entry of the judgment, and if by mistake, or otherwise, the costs were omitted, the remedy was by a motion to amend. The Court alone was competent to grant the relief, and the act of the Clerk was illegal and void.
The title of Chapin rests entirely upon this judgment, and the view
The result of our conclusion upon this point is, that the claim of Hibberd to the tract of two hundred and twenty-three acres is not maintainable. His rights were acquired subsequently to those of Mas-tick and Freaner, and the controversy as between them is the only remaining subject of consideration.
The judgment of Drexel, Sather & Church, under which Mastick claims, was for the foreclosure of a mortgage upon other property, situated in the same county. This judgment was in the form usually adopted in such cases. It ascertained the amount due, and directed a sale of the mortgaged premises, and the application of the proceeds to the payment of the debt. It provided for the recovery of any deficiency which might exist, and authorized the issuance of an execution for that purpose. It was docketed on the twenty-second of May, 1855. Freaner claims under a judgment of the same character, rendered on the twenty-fourth of November, 1854, and docketed on the stime day. Neither of these judgments was satisfied by a sale of the mortgaged property. Under the former, the sale was made, and a report of the deficiency filed, on the twenty-fourth of July, 1855. Under the latter, the sale was made on the thirty-first of July, 1855, and a report of the deficiency filed on the twenty-fourth of August, 1855. The question is, at what time did the lien of these judgments attach upon the land in controversy. On behalf of Freaner, it is contended that the lien attached at the time of docketing; but it is urged in favor of Mastick, that no Hen was acquired until a sale was made, and the deficiency
There are several other questions alluded to in the briefs of counsel, but they áre not of sufficient importance to demand special attention.
We think the conclusion of the Court below was correct, and the judgment is therefore affirmed.
On petition for rehearing, Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.
The petition for a rehearing in this case must be denied. So far as Chapin is concerned, it is unnecessary to add anything to what was said in our former opinion. On behalf of Hit|berd, it is earnestly contended that the views expressed by us, in relation to the effect of the
Rehearing denied.