295 P. 1049 | Cal. Ct. App. | 1931
This cause is before us upon an appeal from an order settling plaintiff's cost bill and refusing to strike out certain items. The record shows that in an action tried in the superior court of the county of Shasta, both the plaintiff and the defendants were awarded their costs, and at the conclusion of the trial, both the plaintiff and the defendants filed their cost bills in which they set out as an item of costs the expense of one-half of the transcript of the testimony taken in the cause just referred to, which *641
transcript was ordered by the court under the provisions of section
The record shows that at the beginning of the trial the court ordered that an original transcript of the testimony be made by the reporter from day to day, and the expense thereof charged to the respective parties in equal proportions, to wit, at 10 cents a folio, being 20 cents a folio for the transcript ordered by the court. The record further shows that at the time of the making of the order just referred to the plaintiff and the defendants also ordered one copy each of the transcript, at a cost of 6 1/2 cents per folio. On the following day the record shows that the plaintiff desired two extra copies of the testimony, which copies the reporter agreed to furnish the plaintiff, as follows: One extra copy for 4 cents per folio and one extra copy for 3 cents per folio.
One-half of the total cost of the original transcript of the testimony ordered by the court amounted to the sum of $675.48. The plaintiff, and also the defendants, in their cost bills, set forth an item of cost in the sum above named, and costs were allowed the respective parties in the sum mentioned, for and on account of the original copy of the transcript of the testimony ordered by the court.
[1] The contention is now made that under the third paragraph of section
In basing their argument upon this section the appellants overlook the fact that only one copy was ordered by the court; that the court ordered an original transcript of the testimony to be made and charged respectively, one-half to the parties in this action. Whatever agreements or orders were made by the parties to this action, they were independent, separate and distinct from the order made by the court. It would hardly be contended that if an outsider entered into an agreement with the reporter to obtain a transcript of the testimony, that this would have anything to do with the cost of the original transcript ordered by the court. Had the court ordered five or more copies to be made, then and in that case no greater charge than 8 cents per folio could have been made for any of the copies. Like-wise, had any one of the parties involved in this action, ordered from the reporter five or more copies, the reporter could not legally have charged more than 8 cents per folio for such copies. The fact that after agreeing to, and furnishing each of the respective parties one copy of the testimony for 6 1/2 cents per folio, the reporter agreed with the plaintiff to furnish extra copies for 4 cents and 3 cents per folio, has no bearing upon the costs of the original transcript ordered by the court, and the defendants are not disadvantaged in the least by reason of the fact that they did not order extra copies. The additional copies ordered by the plaintiff and the cost thereof constituted an independent transaction between the plaintiff and the reporter. It appears that the reporter did not charge all that he might have charged under the section of the code, but that does not affect the transaction in the least, as there is nothing in the section to prohibit charging less than the law allows.
A reference to the case of Barkly v. Copeland,
A number of other questions were argued by counsel, such as the question of estoppel, but we do not think such questions necessary to be considered for a determination of this action.
The order of the trial court is affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 11, 1931, and a petition by appellants 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 6, 1931.