Crag Lumber Co., Inc. v. Crofoot

SCHOTTKY, J.

On June 10,1954, plaintiff, Crag Lumber Company, Inc., recovered a money judgment against defendants in the sum of $118,575.80, plus interest at the legal rate on $31,250 from April 30, 1948, until paid. Defendants appealed.

0n appeal, the judgment of the trial court was modified by this court in

Crag Lbr. Co.

v.

Crofoot,

144 Cal.App.2d 755 [301 P.2d 952], by reducing the amount of the judgment to $77,062.85. On rehearing, this court further modified the judgment as rendered by deciding that the interest on $31,250 as allowed in the judgment from April 30, 1948, “until paid” was erroneous, since such allowance amounted to a duplication and modified the judgment further by allowing said interest only to the date of judgment.

[569]

On December 5, 1956, defendants filed their cost bill and on December 10, 1956, plaintiff moved to tax the costs on appeal by striking therefrom the cost of printing certain briefs as well as the cost of the premiums on the supersedeas bond amounting to $7,967.43.

From the affidavits in support of and in opposition to the motion to retax costs the following facts appear.

On August 5, 1954, the stay of execution on said judgment which had been granted by the trial court expired. Defendants did not have the total amount of cash due on the judgment available and plaintiff threatened to levy an execution against the real property of defendants; prior to the expiration of the stay of execution, defendants attempted to negotiate with plaintiff for the elimination of the necessity of the posting of a bond and the elimination of the consequent expenses in connection therewith. Plaintiff, in writing, advised defendants that no arrangement, in their opinion, could be satisfactorily arrived at which would eliminate the necessity of defendants’ putting up the appeal bond. On August 5, 1954, defendants arranged to post an undertaking on appeal to stay execution in the statutory amount of $199,186.03.

After a hearing the trial court entered its judgment wherein it found as a fact that the undertaking given by the defendants to stay execution pending the appeal was not unnecessary and that the premium paid thereon was a reasonable and necessary cost. On December 10, 1956, defendants paid to plaintiff $94,353.03, which latter sum included $13,634.20 interest upon the judgment as modified from the date of its rendition on June 10, 1954, until December 10, 1956.