Union Trust Co. v. Superior Court

THE COURT.

The respondents, as the prevailing parties,

seek to recover their costs in a

mandamus

proceeding. The petition for the writ was filed in the District Court of Appeal. That court ordered the peremptory writ as prayed. On petition of the respondents the cause was transferred to this court for hearing and determination. This court on June 29, 1.938, denied the writ.

(Union Trust Co. of San Diego

v.

Superior Court,

11 Cal. (2d) 449 [81 Pac. (2d) 150, 118 A. L. R. 259].) On July 29, 1938, the respondents filed a memorandum of costs together with a notice that a motion would be made during the September session of the court for an order allowing costs, directing the issuance of a writ of execution and the ma,nner of collection, and if necessary amending the order denying the writ so as to provide for the allowance of costs. The motion came on for hearing in September as noticed, and was denied from the bench for the reason that counsel for the moving parties did not appear. Upon the

[543]

insistence of counsel that his absence was inadvertent a rehearing was granted.

Section 1095 of the Code of Civil Procedure provides that the successful applicant for the writ of

mandamus

is entitled to his costs. This provision was recognized and applied in

Gould

v.

Moss,

158 Cal. 548 [111 Pac. 925], wherein it was held that although costs could be allowed the successful applicant under that section, the judgment must contain an order to that effect; that in the absence of such an order the filing of a memorandum of costs would be of no avail to the prevailing applicant; that it could not be assumed that the judgment, without a special order, would carry costs, and that this section applied to