In this case plaintiffs filed a memorandum of costs for $117.15. The court granted defendants’ motion to strike it out and ‘ ‘ disallowed all cоsts herein to plaintiffs. ’ ’ Plaintiffs appeal from the order. There is an appeal also from the judgment and from the order denying plaintiffs’ motion to set aside the judgment and correct the conclusions of law therein on various grounds, and among others that the findings of fact required that plaintiffs should have a judgment for their costs. The only questions presented in the briefs relate to the order disallowing plaintiffs’ costs.
The complaint is in form an action to quiet title in which plaintiffs claim to be the owners and possessed of certain mining ground known as the Last Chance Mining Claim (particularly described by metes and bounds). It is alleged that defendants, without right, claim an interest in the land adverse to that of the plaintiffs, and they are called upon to set forth the nature of their claim, etc.
Defendants in their answer deny that plaintiffs own or ever owned or possessed any interest in any part of the land described in the complaint, and allege on their behalf the ownership and possession of cеrtain lands known as the Min *432 ers’ Home Placer Mine Location (describing it by metes and bounds), containing 102.09 acres, which it is alleged сonflicts with the so-called Last Chance Mining Claim to the extent of 89.197 acres (describing the land in conflict). A second defense alleges that the land mentioned in the complaint was forfeited prior to 1892 by failure to perform the required annual labor thereon, and certain facts are set forth showing an alleged conflict of defendants’ location with the Last Chance, as originally located and as subsequently modified. Of the land described in the complaint and in the answer’ the court fоund defendants to be the owners of tract A of the Miners’ Home Placer, containing 3.867 acres, and tract B, 83.426 acres, and thаt plaintiffs were the owners of 33.10 acres in one tract and certain other tracts (acreage not given) and all thе land in certain locations “which . . . does not conflict with the Miners’ Home Placer Mine Location which is hereinbefore designated.” Plaintiffs’ title was quieted to all the lands found to belong to them, and so likewise defendants ’ title was quieted to lands found to belong to them.
1. Respondents make the point that the court has no jurisdiction of the appeal, for the reasоn, as' we understand respondents, that the amount of costs was less that three hundred dollars. (Citing
Fairbanks
v.
Lampkin,
2. By the provision of section 1022 of the Code of Civil Proсedure, “Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: 1. In an action fоr the recovery of real property. ... 5. In an action which involves the title or possession of real estate. . . . ” Section 1025 of the Code of Civil Procedure provides as follows: “In other actions than those mentioned in 1022, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in
*433
thе discretion of the court. ...” Respondents claim that the parties are merely nominal plaintiff and defendant, and that the code sections do not apply; that both parties allege possession and ask equitable relief; and that thе case is not one in which a jury could be demanded, and hence costs are in the discretion of the court. (Citing
Gray
v.
Dougherty, 25
Cal. 282;
Abram
v.
Stuart,
*434 It is advised that the order striking out plaintiffs’ memorandum of costs and disallowing plaintiffs’ costs be reversed, and that the trial court be directed to amend the judgment by inserting therein the plaintiffs’ costs, and thus amended to stand approved.
Gray, C., and Plarrison, C., concurred.
For the reasons given in the foregoing opinion the order striking out plaintiffs’ memorandum of costs and disallowing plaintiffs’ costs is reversed, аnd the court below is directed to amend the judgment by inserting therein the plaintiffs’ costs, and as thus amended said judgment shall stand affirmed.
Van Dyke, J., Shaw, J., Angellotti, J.
Notes