99 Cal. 477 | Cal. | 1893
Appeal from an order of the superior court, by Mabel Treadwell, executrix of the will of J. P. Treadwell, deceased, denying appellant’s motion to strike out (or, in the alternative, to retax) a cost bill filed by plaintiff.
In 1866 the plaintiff, Eeay, commenced an action of ejectment against Butler and Owens to recover the possession of a tract of “outside lands” known as “Speck ranch.” J. P. Treadwell, appellant’s testator, filed an intervention in said action, alleging, in substance, that he was the owner and in possession of said ranch; that the defendants, Owens and Butler, were his servants and employees merely; that they were in collusion with the plaintiff and that the action was commenced and was being prosecuted for the fraudulent purpose of tricking him out of the possession of his property upon legal process. Whereupon he prayed that the plaintiff be enjoined from prosecuting said action and that the intervenor’s title be quieted, etc. The plaintiff, Eeay, answered the intervenor’s complaint denying all the material allegations thereof. The court ruled that the issues raised by the intervention and answer should be first tried, and a trial of said issues was had by the court, without a jury, which resulted in findings and a judgment in favor of said intervener. From that judgment the plaintiff appealed to this court. Here the judgment was reversed and the cause remanded with directions to strike out the intervention so that a trial might be had by a jury, if not waived, of the issues raised by the complaint and answer. The representative of the intervener, who died after the action was commenced, was allowed to defend in the name of the defendants. The intervenor died in 1884, after the appeal from the judgment in his favor had been taken and perfected, and while it was pending in this court. Appellant was substituted as respondent here in place of said deceased.
The remittitur was filed in the superior court on September 27, 1886, and two days thereafter plaintiff Eeay filed his memorandum of costs, including those incurred on the trial of the issues raised by said intervention and answer, together with the costs of his appeal from the judgment rendered therein. It was that bill of costs that appellant moved to strike out or have re-taxed, and this appeal is from the order denying her said motion.
In the view we take of this case it is unnecessary to determine whether the judgment should have been in the form prescribed by section 1031 above cited, or under section 1509 of the Code of Civil Procedure. Section 1031 of the Code of Civil Procedure, as we construe it, does not forbid the taxation
The views we have reached upon the merits make it unnecessary to again consider the motion of respondent to dismiss the appeal. It is a matter of very grave doubt whether the case of Muir v. Galloway, 61 Cal. 498, was correctly decided, in so far as it holds that the superior court may by the entry of two or more orders (the first or any order or orders preceding the last expiring on Sunday) extend the period of time within which any of the acts mentioned in section 1054 of the Code of Civil Procedure may be performed for a longer period than authorized by that section if only one order of extension is made. We do not, however, undertake at this time to definitely pass upon this, and the question may be regarded as an open one.
No sufficient ground appearing for the reversal of the order appealed from, it must be affirmed.
Hearing in Bank denied.