Paine v. Bank of Ceres

PETERS, P. J.

Motion to recall remittitur.

On June 17, 1943, this court filed its opinion in the above entitled case affirming the judgment of the trial court.

(Paine

v.

Bank of Ceres,

59 Cal.App.2d 242 [138 P.2d 396].) The action had been brought by plaintiff for damages for the conversion of his cattle. Judgment was entered in favor of the plaintiff for $849.02. In the notice of motion filed herein it is stated that this judgment was one that could have been rendered by the justice’s court in the county concerned. It is' further averred, and not denied, that the superior court has denied plaintiff his trial costs.

After this court had affirmed the judgment, and after the judgment had become final, the clerk of this court, on August 17, 1943, issued the remittitur. The remittitur is in the usual form and concludes with this sentence: “The respondent to recover costs of appeal.” The defendant’s present motion is to recall the remittitur for the purpose of striking therefrom the allowance of costs. If the costs were improperly allowed

[622]

this is the proper remedy.

(San Joaquin etc. Irr. Co.

v.

Stevinson,

165 Cal. 540 [132 P. 1021].)

An examination of the pertinent code sections demonstrates that the costs on appeal were properly allowed the prevailing party. Section 1032 of the Code of Civil Procedure provides that: “In the superior court, except as otherwise expressly provided, costs are allowed of course” to the prevailing plaintiff, provided “that the plaintiff shall not recover costs when the judgment is one which could have been rendered by a municipal or inferior court within the same county or city and county.” This section, by its terms, is limited to costs in the trial court, and, acting pursuant thereto, the trial court has properly denied the prevailing plaintiff his trial costs. That section, however, has no application to costs on appeal. Such costs are governed by section 1034 of the Code of Civil Procedure. That section provides that: “The prevailing party on appeal shall be entitled to his costs” except in certain circumstances not here involved. There is no such exception as is contained in section 1032.