Gayer v. Whelan

GRIFFIN, Acting P. J.

The original proceeding herein was an action in which plaintiff sought to recover 14 pin-ball machines which defendant, in his capacity as District Attorney of San Diego County, had seized and proposed to destroy under the provisions of section 335a of the Penal Code. The action was decided in favor of plaintiff. (See

Gayer

v.

Whelan,

59 Cal.App.2d 255 [138 P.2d 763].)

Defendant and appellant, as District Attorney of San Diego County, now moves to recall the remittitur in this action, issued August 17, 1943, because of a provision therein awarding costs to respondent. The motion is predicated upon the theory that at the time of the issuance of the remittitur there was no provision in the law awarding costs against the state or county, and that inasmuch as defendant was acting in his

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capacity as District Attorney of San Diego County, he too was immune from the payment of costs on the same theory.

It is a general rule that the prevailing party on an appeal shall be entitled to his costs as an incident of the judgment on appeal. (Sec. 1034 Code Civ. Proc.; rule 26, Rules on Appeal.)

Section 1028 of the Code of Civil Procedure, as it existed prior to amendment in 1943, provided that “When the State is a party and costs are awarded against it, they must be paid out of the State treasury.” And as amended in 1943 (Stats. 1943, chap. 165, see. 1) it provides that “Notwithstanding any other provisions of law, when the State is a party, costs shall be awarded against it on the same basis as against any other party and, when awarded, must be paid out of the appropriation for the support of the agency on whose behalf the State appeared.”

Section 1029 of the Code of Civil Procedure was not similarly amended. It still provides that when a county is a party, and costs are awarded against it, they must be paid out of the county treasury.

Construing section 1028, supra, as it existed prior to the 1943 amendment, it has been held that ordinarily costs are not allowed against the State in the absence of express statutory legislation, and section' 1038 (now 1028) of the Code of Civil Procedure, which provides that when the state is a party and costs are awarded against it, they must be paid out of the state treasury, does not authorize the imposition of costs in any case, but merely specifies the source from, which they sba.n be paid when authorized by statute; and that in a proceeding for forfeiture of an automobile used for unlawful transportation of narcotics, that it is improper to allow costs against the state in the absence of statutory authorization.