On an appeal by the plaintiffs in this action the part of the judgment appealed from was reversed (
The appeal рresents 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 thе 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 аmounts 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, hоwever, 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 рart 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 аny 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 presentеd was presented in Cain v. French,29 Cal. App. 725 , [156 Pac. 518 ]. On the theory that costs are but an incident of a judgment, and that the rule pertaining to their allowance may be changed or modified by statute during the pendency of the proceeding, it was held by the district court of appeal of the first district that the statute in force- at the time the judgment on the appeal is given controls, and that the party was therefore entitled to recover the cost of printing the brief, not exceeding $50. A petition for a hearing in this court was denied. That costs are but an incident to the judgment has many times been declared, as it was in Begbie v. Begbie,128 Cal. 154 , [49 L. R. A. 141,60 Pac. 667 ], where it was also said that their recovery is governed by the statute in force at the time the right to have them taxed accrued. This appeаrs to be the general rule. In so far as costs on appeal are concerned this time, as was held in Eaton v. Southern Pacific Co.,31 Cal. App. 379 , [160 Pac. 687 ], is the *572 time of the rendition of the judgment on appeal. We think the question prеsented was correctly decided in Cain v. French, supra. It follows that the lower court did not err in allowing this item.
The other item was one of $882,60, being for “Preparing Record on Appeal.
“Transcript of tеstimony, 8,826 folios at 10 cts... .882.60.”
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 оf 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 amоunt 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 s°ame, in pursuance of which the reporter transcribes his notes and certifies the same, being paid by such party the chаrge 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 preрaration 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 whiсh 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 сost 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 wоuld 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 оf 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 tern., and Richards, J., pro tern., concurred.