294 P. 434 | Cal. Ct. App. | 1930
This is an appeal by the plaintiff from an order refusing to tax costs, and also from an order refusing to strike out a cost bill. Heretofore this plaintiff commenced an action against the defendant to recover the balance of the purchase price of certain Russian rubles. Thereafter judgment was rendered in favor of the plaintiff. The defendant made a motion for a new trial. His motion was denied and he took an appeal. Later when he presented his bill of exceptions for settlement the plaintiff objected to the settlement and the objection was sustained. [1] Thereupon the defendant filed in the Supreme Court an original application for a writ of mandamus directing the trial judge to settle and certify the bill of exceptions. *469
(Silverman v. Thompson,
[5] The motion to strike the entire cost bill rests on the fact that the plaintiff's memorandum of costs was served before the remittitur had been filed, although it was filed thereafter. However, as stated above, another copy was served and filed on May 7, 1928. As to the last-mentioned copy, the record does not show that any attack whatever was made thereon. The original memorandum was prematurely served, although it was filed in proper time. The second copy was both served and filed in proper time. The order denying the motion to strike does not specify whether it refers to the memorandum served on April 26, 1928, or the one served on May 7, 1928. Under these circumstances the error, if any, was waived. (7 Cal. Jur. 294; Legg ShawCo. v. Worthington,
The order refusing to strike out the memorandum of costs is affirmed, but the order refusing to tax the costs is reversed and the trial court is directed to make an order not inconsistent with what has been said above. The appellant will recover his costs on this appeal.
Nourse, P.J., and Spence, J., concurred.