225 P. 24 | Cal. Ct. App. | 1924
In the above action, as originally prosecuted, plaintiff secured judgment in the trial court. [1] An appeal was taken under the alternative method, but the judgment was affirmed. (Kohn v. Kempner et al.,
The cost of the transcript on the original appeal was incurred and paid by appellant therein (respondent here); but it is now claimed, in support of this appeal, that "It was just as necessary for the respondent on that appeal to have these transcripts before him in defending the judgment and resisting the contention of the appellants herein, as it was for the Appellate Court to have the same transcripts before it in determining the sufficiency and validity of the judgment attacked." In support of this position appellant relies upon that portion of section
Doubtless it is convenient for each party to an appeal to have a copy of the transcript before him in preparing his briefs to be presented to the appellate court, but the fault with appellant's argument lies not in the lack ofnecessity, but in the lack of provision in the statute forreimbursement, therefor. The statute determines the necessity, not the individual. Presumably, each side has a copy of the pleadings, and, having participated in the trial, must be fairly acquainted with the evidence in the case; and herein lies the difference between the position occupied by a litigant and that of the appellate court. While the item here involved is small, it must be remembered that there are cases where the transcript covers many hundreds of pages, and, *66
if one of the litigants, of his own volition, may order and have furnished to him for his individual use, a copy of the transcript on appeal, then it follows that all the other parties to the action must be accorded the same right, and where there are numerous conflicting interests involved, each represented by different counsel, the expense would be of some considerable moment. So far as we are advised, such an item has never been recognized as a necessary disbursement, allowable as costs to be taxed against the opposing side. The case ofSime et al. v. Hunter,
The order appealed from is affirmed.
Finch, P. J., and Hart, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 28, 1924.
All the Justices concurred.