131 P. 879 | Cal. Ct. App. | 1913
This is an appeal from an order of the superior court of the city and county of San Francisco fixing costs.
After this case was once tried in the superior court, resulting in a verdict for appellant, a new trial was granted, whereupon issue was again joined before a jury and again resulted in a verdict in appellant's favor.
After the second trial appellant seasonably and regularly filed and served a statement of his costs and disbursements incurred in both trials, and included therein an item of two hundred dollars on account of attorney fees, claiming such *366 under section 7 of the Libel and Slander Act (Stats. 1871-2, p. 534), that section providing that "In case plaintiff recovers judgment he shall be allowed as costs one hundred ($100) dollars to cover counsel fees in addition to other costs."
Respondent insists that the appeal must be dismissed for the reason that appellant has failed either to bring up any authenticated bill of exceptions in pursuance of rule 29 of the supreme court [144 Cal. lii, 78 Pac. xii] or any record such as is contemplated by sections 953a, 953b and 953c of the Code of Civil Procedure.
The record before us contains certain papers designated as "transcript," which is stipulated by counsel to be "a true and correct copy of the material papers on appeal . . . and that the same shall constitute the record on appeal herein and that the appeal herein shall be heard thereon"; and also a certificate of the clerk of the superior court that the papers contained in the transcript are true and correct copies of the originals of such papers on file in his office.
Neither this certificate by the clerk nor the stipulation can take the place of a judge's certificate required by section 953a of the Code of Civil Procedure, because the law provides that a judge alone can certify as to what evidence was received and what proceedings had at the hearing before him. Neither parties litigant nor counsel can confer original or appellate jurisdiction on this court by stipulation or consent.
In Credit Clearance Bureau v. Weary Alford Co.,
As was said in Walsh v. Hutchings,
In Harrison v. Cousins,
In Manuel v. Flynn,
The situation in the case at bar is identical with the situation above set out.
In Melde v. Reynolds,
It follows that the appeal must be dismissed. We arrive at this conclusion with less hesitancy for the reason that we are satisfied that on principle, supported by authority, the conclusion of the trial court was correct on the merits. The costs provided in this class of cases are penal in their character and are not part of the costs denominated as such, and should only be taxed in the statutory amount after final judgment. (Singer v. Fidelity Deposit Co. of Md.,
The authorities cited by appellant are not applicable to the situation presented by the record in this case. There can be no doubt, and it is conceded, that the ordinary costs of a first trial of an action tried a second time, either because of the granting of a new trial or on reversal of the judgment, may ultimately be taxed in favor of the prevailing party.
The appeal is dismissed.
Lennon, P. J., and Hall, J., concurred.