171 P. 299 | Cal. | 1918
On an appeal by the plaintiffs in this action the part of the judgment appealed from was reversed (
The appeal presents the question of the right of plaintiffs to recover as costs of the appeal the amounts shown by two items of the memorandum of costs.
The statute in force at the time the decision of reversal by this court was rendered (June 29, 1914) was, so far as material, as follows:
"The party entitled to costs, or to whom costs are awarded, may recover all amounts actually paid out by him in connection with said appeal and the preparation of the record for the appeal, including the costs of printing briefs; provided, however, that no amount shall be allowed as costs of printing briefs in excess of fifty dollars to any one party." (Code Civ. Proc., sec. 1027.)
The memorandum of costs included an item of $50, being part of the cost of printing plaintiffs' brief on their appeal. The objection to this item is that at the time the brief was printed and filed there was no law authorizing the recovery of any part of the expense thereof as costs. After such filing, and prior to our decision of reversal, the statute was amended to read as hereinbefore set forth. Defendant's claim is that the statute may not be read as applicable to briefs printed and filed prior to the taking effect of the amendment. Precisely the situation here presented was presented in Cain v. French,
The other item was one of $882,60, being for
It sufficiently appears from the affidavit of one of the plaintiffs' attorneys that no amount whatever was actully paid out, or, indeed, any pecuniary liability incurred, in the matter of this transcript of testimony at any time after the judgment appealed from was given, or, so far as appears, with any view to taking any appeal. At the time of the trial, which, according to the affidavit, commenced in the year 1906, the trial court ordered the testimony written up at the expense of the parties for the purposes of the trial, and plaintiffs at the same time ordered an extra copy for their own use, thereby obtaining the same at one-half the rate charged for a single copy. The amount charged and then paid by plaintiffs to the shorthand reporter for this extra copy was $882.60, and it is this payment that plaintiff seeks to recover as costs of appeal. Subsequently the judgment was given against plaintiffs and they, in due time, took their appeal. On that appeal plaintiffs presented the record provided by sections 953a et seq. of the Code of Civil Procedure (enacted in 1907), which includes a transcription of the notes of the shorthand reporter of the proceedings at the trial, certified by him and settled by the judge. To procure such a record which will be available for use on an appeal it is essential that the party preparing to appeal shall, within a specified time after judgment, file a demand for the preparation of the same, in pursuance of which the reporter transcribes his notes and certifies the same, being paid by such party the charge allowed by law therefor. Such a payment, of course, can be recovered as a cost of appeal, being an amount actually paid out in the preparation of the record on appeal. In the case at bar the plaintiffs, having made the demand, arranged with the reporter to use, in making up his transcript, their copy which they had obtained and paid for during the trial. This was done, and, as we have said, it sufficiently appears that nothing whatever was paid out by plaintiffs on account thereof. It would have cost double *573 the amount to have had the reporter prepare a new transcript in the usual way for the purposes of the appeal, and the whole thereof would have been recoverable as costs. Defendant has not waived, by stipulation or otherwise, the right to object to this item of alleged costs. The question is whether, under these circumstances, the original cost of the transcript to the plaintiffs can be recovered by them as costs of appeal.
We are satisfied that in view of the language of our statute (Code Civ. Proc., sec. 1027), and notwithstanding much apparent reasonableness in plaintiffs' claim, this question must be answered in the negative. The right to recover costs exists solely by virtue of statute (Begbie v. Begbie,
There is no force in the claim that the cost bill was not properly verified.
The order appealed from is reversed, with directions to the court below to disallow the item of $882.60 for transcript of testimony, and to tax plaintiffs' costs on said appeal at the sum of $80.75.
Wilbur, J., Melvin, J., Sloss, J., Shaw, J., Victor E. Shaw, J., pro tem., and Richards, J., pro tem., concurred.