Kellogg v. Honcutt Gold M. Co., Ltd.

California Court of Appeal Feb 17, 1938 No. Civ. 5900Published

Before: Thompson

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Holding. The court affirmed the order allowing keeper's fees because the appellant failed to provide a record of the evidence presented at the hearing, and the appeal was procedurally defective for failing to appeal the order as a special order after final judgment.

Issues

Whether the trial court erred in allowing keeper's fees in the absence of evidence in the bill of exceptions showing a waiver of such fees.
Whether an appeal from a judgment is sufficient to challenge a post-judgment order retaxing costs.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Since the bill of exceptions contains no evidence adduced at the hearing of the motion to retax costs from which we may find that the order allowing keeper’s fees in the sum of $324 was erroneously made, we are powerless to disturb that order.”

“It is now settled that an order on a motion to retax a cost bill made after the rendition and entry of final judgment is appealable as a special order after final judgment.”

THOMPSON, J.

The defendant has appealed from that portion of a judgment which was rendered against it allowing to the plaintiff his costs including an item of $324 as keeper’s fees. The appeal is presented on a bill of exceptions.

Suit was commenced against the defendant. Under the provisions of section 537 of the Code of Civil Procedure the personal property of the defendant was attached to secure payment of the judgment. Upon proceedings duly had the sheriff placed a keeper in charge of the property pending the outcome of the litigation. Thé sheriff failed to demand of the plaintiff the deposit of money to pay the expenses of taking and keeping the property as provided by section 542, subdivision 5, of the Code of Civil Procedure. The keeper actually retained charge of the property for the period of 155 days. Judgment was rendered in favor of the plaintiff, including therein his costs of suit. In due time a memorandum of costs was filed which contained an item of $465 for keeper’s fees. The defendant formally moved to retax the costs, claiming that the keeper had previously waived in writing his claim for fees for taking charge of the property. After the hearing of the motion to retax costs, at which oral evidence was adduced, the court made an order January 15, 1937, allowing the sheriff for keeper’s fees the sum of'$324. This was an order of court made “after final judgment” was entered.

[111]

Upon the hearing of the motion to retax costs both the sheriff and the keeper were sworn and examined. The evidence of neither of these witnesses which was adduced at that hearing appears in the bill of exceptions. This court has no means of ascertaining what their evidence consisted of. The bill of exceptions does contain a purported “Keeper’s Receipt”, signed by the keeper, Robert A. Kellogg, which contains the following language:

“The undersigned

agrees to accept

and receive in full satisfaction for his services

such sums as the Court

in which said action is pending

may allow,

Kellogg v. Honcutt Gold M. Co., Ltd.

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THOMPSON, J.

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