Monson v. Fischer

This is an appeal from so much of an order taxing costs on appeal as allows to defendant an item of $116 incurred by her as costs on trial of the action in the court below.

The trial on its merits resulted in judgment for plaintiffs, which was reversed on appeal (Monson v. Fischer, 118 Cal. App. 503 [5 P.2d 628]). Under section 1034 of the Code of Civil Procedure and within the time allowed, defendant filed a memorandum covering her costs on appeal and included therein the aforesaid item. Plaintiffs moved to retax said costs by striking from the bill said item. This motion was denied and plaintiffs thereupon appealed from so much of the order as included the item.

[1] This item could properly be allowed only after a final judgment for defendant in the trial court (sec. 1024, Code Civ. Proc.); it was no part of her costs on appeal. The reversal of the judgment sets the case completely at large except as restricted by the opinion of the appellate court (Central Sav.Bank v. Lake, 201 Cal. 438, 443 [257 P. 521]; Estate ofPusey, 177 Cal. 370, 371 [170 P. 846]). [2] An order taxing costs on appeal is a special order made after final judgment within the meaning of section 963 of the Code of Civil Procedure and is appealable (Markart v. Zeimer, 74 Cal. App. 152 [239 P. 856]).

The order taxing costs of appeal in this action is therefore modified by striking therefrom said item of $116 and, as so modified, the order is affirmed, appellants to recover their costs on this appeal.

Langdon, J., Curtis, J., Thompson, J., Seawell, J., and Waste, C.J., concurred.