Logan v. Forster

DRAPEAU, J.

On February 5, 1953, a remittitur was filed in superior court case No. 566590 between the parties hereto, in which it was ordered that respondents therein (defendants Forster and Steinike) should recover their costs on appeal.

Thereafter said Forster and Steinike filed their memorandum of costs and disbursements on appeal amounting to $574.60. Plaintiff Logan filed notice of motion to have such costs retaxed by striking from the memorandum items 26 and 27. This motion was granted and the two items, i.e., 26 and 27 for $209.90 and $27.40 paid by Forster and Steinike for the cost of reporter’s and clerk’s transcripts, respectively, were deleted from the memorandum, thus reducing costs to $337.30.

Defendants appeal from the order which followed.

The question presented by this appeal is stated by appellants as follows:

“Where the remittitur provides that the

sioccessful

party will recover' his costs on appeal, may that party recover the costs for a Reporter’s Transcript and a Clerk’s Transcript paid for by said party?”

The instant motion to retax costs was made upon the ground that items 26 and 27 of defendants’ memorandum were not legally chargeable, were not necessary disbursements and were not necessarily incurred.

The affidavit in opposition to the motion recites: “That it was necessary for respondents to have a copy of the Reporter’s Transcript in order to properly prepare a reply brief on appeal, and it was also necessary to have a copy of the Clerk’s Transcript.

“That had appellant provided a copy of the Reporter’s Transcript and a copy of the Clerk’s Transcript for use by respondents, they would not have had to order and pay for the same.”

Section 1034, Code of Civil Procedure, provides that on an appeal from the superior court, costs shall be awarded as provided by the rules adopted by the judicial council.

Rule 26(c) of Rules on Appeal, as amended, effective January 1, 1951 (36 Cal.2d 23), reads: “The party to whom costs are awarded may recover

only

the following, when ac

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