69 P. 687 | Cal. | 1902
The question presented on this appeal is a portion of the aftermath of San Francisco Savings Union v. Long,
After this remittitur had been filed in the superior court, the appellants filed with the clerk of that court a memorandum of their costs upon the appeal, and sought to recover the same from the plaintiff, the respondent herein. The plaintiff, however, obtained from the court an order perpetually staying the issuance of an execution for said costs against it. From this order the present appeal has been taken.
Neither in the decision of this court nor upon the face of theremittitur was designated the parties from whom the costs were to be recovered, and it becomes necessary, therefore, to examine the case itself for the purpose of determining who were the parties adverse to the appellants upon that appeal, since it is only those parties from whom they are entitled to recover their costs. The action, as stated in the opinion, was an action of interpleader, brought by the plaintiff to have the defendants litigate between themselves and have determined to whom the money involved in the action should be paid. As also stated therein, in such cases there may always be a two-fold contest and two sets of pleadings: 1. As to the right of the plaintiff to bring the suit and force the defendants to interplead; and 2. If such right is maintained, the several complaints of the defendants in which their respective rights to the subject in controversy *70
are set up. It was held that none of the defendants had taken issue with the plaintiff as to its right to compel the parties to interplead, and that those who had appeared had merely set out their respective rights as against the others; that upon this state of facts, the plaintiff having deposited the money in court, was dismissed from the case. It was also held that the action was properly brought by the plaintiff under section
After the appeal herein had been taken, the appellants applied to this court for a writ of review for the purpose of annulling the order now appealed from, and also for a writ of mandate compelling the clerk of the superior court to issue an execution against the plaintiff for their costs. In denying their application, this court said: "It is quite apparent that the Savings Union having been dismissed from the case in the court below, and that action having been approved here, the judgment for costs does not run against, said San Francisco Savings Union, and the petitioners *71
here, as the appellants in said case, have no right to an execution against said Savings Union." (Long v. Superior Court,
The order is affirmed.
Garoutte, J., and Van Dyke, J., concurred.