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is culy on final judgment that costs are allowed.36 The code section authorizing taxation of certain specified costs in partition, and not mentioning attorney's fees, does not permit allowance of attorney's fees.3 The statute of California37a as amended in 1907 37b provides for an attorney, for his fee, and a lien therefor, upon the interest of parties in partition who die or become incompetent pending the action.

§ 1504. In equity.-Costs in equity are always in the discretion of the court, and whether granted or withheld, are but as incidents. to, and no part of, the relief sought.38 Without a statement or bill of exceptions, this discretion cannot be reviewed upon appeal.39 In some equity cases counsel fees may be awarded in the discretion of the court.40

§ 1505. Injunction.-In a suit for damages to a mining claim and for an injunction, plaintiffs had judgment for one hundred dollars, and costs taxed at . . . dollars, a perpetual injunction being granted also. After the judgment was entered, plaintiffs moved that costs for the trial be allowed. The motion was denied, except as to the costs accrued by reason of the injunction granted; and it was held that this is a case where allowance of costs is in the discretion of the court below.41

§ 1506. Money or damages.-Costs of a suit form no part of the matter in dispute, and an appeal does not lie to the supreme court where the amount involved is less than two hundred dollars, although the costs added thereto may increase it beyond that sum.42 Under the California statute13 providing that "no costs. can be allowed in an action for the recovery of money or damages when the plaintiff recovers less than three hundred dollars,'

36 Harrington v. Goldsmith, 136 Cal. 168, 68 Pac. 594.

37 Legg v. Legg, 34 Wash. 132, 75 Pac. 130.

37a Cal. Code Civ. Proc., § 763. 37b Cal. Stats. 1907, p. 605. 38 Gray v. Dougherty, 25 Cal. 282. See, also, Abram v. Stuart, 96 Cal. 235, 31 Pac. 44; Cole v. Logan, 24 Or. 304, 33 Pac. 568; Lovejoy v. Chapman, 23 Or. 571, 32 Pac. 687.

39 Faulkner v. Hendy, 103 Cal. 15, 36 Pac. 1021.

40 Salmina v. Juri, 96 Cal. 418, 31 Pac. 365.

41 Esmond v. Chew, 17 Cal. 336. As to costs in injunction suits, see Himes v. Johnson, 61 Cal. 259; Brown v. Delavau, 63 Cal. 303; Davidson v. Devine, 70 Cal. 519, 11 Pac. 664; Abram v. Stuart, 96 Cal. 235, 31 Pac. 44.

42 Dumphy v. Guindon, 13 Cal. 30. See Zabriskie v. Torrey, 20 Cal..

174.

43 Code Civ. Proc., § 1025.

neither party can recover costs in such case, and the defendant is not entitled to a judgment against the plaintiff for his costs.44

§ 1507. On appeal. The judgment of the supreme court on appeal, and costs consequent thereon, is final, and the superior court has no authority to prevent immediate execution of the judgment of this court so remitted.45 The clerk of the supreme court, in entering up the judgment, adds the words "with costs," and annexes to the remittitur a copy of the bill of costs filed; these words are a sufficient awarding of costs for the clerk below to issue an execution.46 The costs on appeal, or, properly, the costs in this court, and the costs of making up the appeal in the court below, including the costs of making out the transcript and the costs of the former trial, abide the event of the suit.47 The supreme court is not bound, in taxing costs on an appeal, to allow the amount actually paid for printing briefs, when such amount appears unreasonable.48

§ 1508. On judgment affirmed in part and reversed in part.Where a judgment was affirmed in part and reversed in part, the respondent may be allowed his costs in the court below, and be required to pay the costs of the appeal.49 Judgment may be affirmed as to a mandamus, but reversed as to costs.50 Thus, where a judgment of the court was incorrect in part, the appellate court ordered the court below to modify its judgment accordingly, and the appellants recovered the costs of their appeal.51 Both parties having sought an injunction against the other, each, having failed to make a case, should pay his own costs.52 Where an appeal is joint as to two respondents, and appellant prevails as to one only,

44 Anthony v. Grand, 101 Cal. 235, 35 Pac. 859.

45 City of Marysville v. Buchanan, 3 Cal. 212.

46 Id. See, as to costs on reversal, Estate of Robinson, 106 Cal. 493, 39 Pac. 862.

47 Gray v. Gray and Eaton v. Palmer, 11 Cal. 341; Ex parte Burrill, 24 Cal. 350. Where each party was made to pay his own costs on appeal, see Bradbury v. Barnes, 19 Cal. 120. Where costs of motion in supreme court were not allowed, see Swain

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he can recover of the unsuccessful respondent only one half of the costs on appeal.53

§ 1509. On new trial awarded.—When a judgment for plaintiff is refused by the appellate court, and a new trial is awarded, if plaintiff recovers judgment on the second trial, he is entitled to his costs in the court below incurred on the first trial.54

§ 1510. On judgment reversed.—Where a judgment is reversed by the supreme court, and the case remanded for further proceedings, and costs are awarded in general terms, the costs awarded include only the costs made on the appeal to the supreme court. The costs of the former trial abide the event of the suit.55 Where the judgment below is reversed on appeal and a new trial had, the costs of the first trial are part of the final bill of costs.56 Appellant may have to pay costs, though the judgment is reversed.57 The expense of printing the record and the appellant's brief, and the stenographer's fee, are not, in the absence of a statute, properly items of costs awarded appellant on the reversal of the judgment.58 Expenses incurred by a party to a suit in the employment of experts are not taxable as costs.59 And the clerk is not authorized to tax fees for approving appeal and supersedeas bonds.60 If no motion be made in the court below to correct a clerical error disclosed by the pleadings, the error will be corrected in the supreme court at appellant's cost.61 If any one or more of the parties desire a modification of the judgment as to costs, the proper application should have been made within the ten days allowed for filing a petition for a rehearing.62 Defendants below and appellants here, on the main question, to wit, the injunction, re

53 McKenzie v. Royal Dairy, 35 Wash, 390, 77 Pac. 680.

54 Stoddard v. Treadwell, 29 Cal. 281.

55 Ex parte Burrill, 24 Cal. 350. 56 Visher v. Webster, 13 Cal. 58. 57 Reniff v. The Cynthia, 18 Cal. 669.

58 Price v. Garland, 4 N. Mex. 365, 20 Pac. 182, As to taxation as costs of stenographer's fees, see McDonald v. Burke, 3 Idaho, 266, 28 Pac. 440; Barkly v. Copeland, 86 Cal. 493, 25 Pac. 3; Marks v. Culmer, 7 Utah, 163,

25 Pac. 743; First Nat. Bank v. North, 6 Dak. 136, 41 N. W. 736, 50 N. W. 621.

59 McDonald v. Burke, 3 Idaho, 266, 28 Pac. 440. See Faulkner v. Hendy, 79 Cal. 265, 21 Pac. 754. As to attorney's fee not taxable as costs. see Marks v. Culmer, 7 Utah, 163, -' 1 743.

60 Soules v. McLean, 7 Wash. 451, 35 Pac. 364, 1082.

61 Tryon v. Sutton, 13 Cal. 491. 62 Gray v. Gray, 11 Cal. 341.

quired to pay costs in this court on both appeals.63 Subject to a motion to strike out disputed items, the filing of the memorandum of costs has the same effect as a formal entry of judgment, and execution thereon may issue as on a final judgment of the court, but he successful party must, within thirty days after the remittitur is filed with the clerk below, file with such clerk a memorandum of his costs.64

§ 1511. On remittitur. The party responsible for erroneous proceedings after the remittitur has been sent down from the supreme court must pay the costs of those proceedings, and the costs consequent on a second appeal caused by them.65 If the printed transcript in the supreme court is unnecessarily long, the party responsible for this will be adjudged to pay the costs of printing thus unnecessarily incurred. The respondent will not be allowed costs for the printing in his brief of the findings of fact of the trial court, after the appellant has printed the same in his brief;67 nor will the cost of printing unnecessary repetitions be allowed.68 The clerk of the court below can issue an execution, if required by the prevailing party, for the costs included in the memorandum and the costs of the clerk of the supreme court, as certified by him in the remittitur.69

§ 1512. Right of use of water.-In an action to try the right of the use of water, and for damages for diverting it, where the amount for which judgment is given is less than two hundred dollars, it will carry costs.70

§ 1513. Costs--In particular cases.-Section 997 of the California Code of Civil Procedure, providing that in case of an offer of judgment by the defendant, "if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer," is to be construed as applying only to costs accruing after the time of the offer.71 In

63 Jungerman v. Bovee, 19 Cal. 355. 64 State v. District Court, 27 Mont. 40, 69 Pac. 244.

65 Argenti v. City of San Francisco, 30 Cal. 458.

66 People v. Holden, 28 Cal. 124. 67 Deering v. Holcomb, 26 Wash. 588, 67 Pac. 240, 561.

68 Ferguson v. Byers, 40 Or. 468,

67 Pac. 1115, 69 Pac. 32.

69 Ex parte Burrill, 24 Cal. 350. 70 Marius v. Bicknell, 10 Cal. 217; Votan v. Reese, 20 Cal. 90.

71 Douthitt v. Finch, 84 Cal. 214, 24 Pac. 929. See Scammon v. Denio, 72 Cal. 393, 14 Pac. 98.

actions to foreclose liens of materialmen and subcontractors in the city and county of San Francisco, the plaintiff, as the prevailing party, is entitled to recover as costs the percentage on the amount recovered, fixed by the act of February 9, 1866.72 The provision of section 6 of this act does not include a judgment in the alternative in an action of replevin for the return of the property, or its value with interest.73 But actions to enforce a street assessment are included therein.74 Where specific performance is refused because of the fraudulent misrepresentations of the plaintiff, and the defendant is free from blame, costs should not be awarded to the plaintiff, but should be awarded to the defendant.75

§ 1514. The same-Security for. The cost-bond required of non-residents before commencing suit, if tendered after action brought, even though before the motion to dismiss is interposed, comes too late.76 Whether or not a resident plaintiff shall be required to give security for costs under the Colorado act of 1885,77 is a matter resting in the sound discretion of the court.' 78 In an action against several defendants by a non-resident plaintiff, he cannot, under section 844 of the Washington Code of Procedure, be compelled to furnish a separate bond for costs to each defendant appearing and claiming such bond.79 Where an attachment of property of an insolvent building and loan association is a valid lien, the costs of the action are secured by it, and should be paid in full from proceeds of the sale of the attached property, the same as the original debt sued on.80 The court may order costs to be paid out of money deposited in court as and for a tender on part of defendant.81

72 Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 38 Pac. 635. See Packard v. Wilson, 72 Cal. 124, 13 Pac. 220; Fanning v. Leviston, 93 Cal. 186, 28 Pac. 943.

73 Wheatland Mill Co. v. Pirrie, 89 Cal. 459, 26 Pac. 964.

74 Fanning v. Leviston, 93 Cal. 186, 28 Pac. 943.

75 Kelly v. Central Pacific R. R. Co., 74 Cal. 565, 16 Pac. 390. As to costs in action by executor or administrator, see Stevens v. San Francisco etc. R. R. Co., 103 Cal. 252, 37 Pac. 146; Reay v. Butler, 99 Cal. 477, 33

Pac. 1134. As to liability for costs of guardian ad litem, see Granholm v. Sweigle, 3 N. Dak. 476, 57 N. W. 509.

76 Edgar etc. Min. Co. v. Taylor, 10 Colo. 110, 14 Pac. 113.

77 Sess. Laws, 156.

78 Ward v. Wilms, 16 Colo. 86, 27 Pac. 247.

79 Robinson v. Haller, 8 Wash. 309, 36 Pac. 134.

80 Bories v. Union Building etc. Assoc., 141 Cal. 79, 74 Pac. 554.

81 Kruegel v. Kitchen, 33 Wash. 214, 74 Pac. 373.

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