Miller v. Cortese

[48]

FOX, J.

On the trial of this case, judgment was rendered in favor of defendant Celia A. Dinow, as administratrix of the estate of Meyer Ernest Dinow. Plaintiff appealed. (See Miller

v. Cortese,

125 Cal.App.2d 656 [271 P.2d 87].) Petition for hearing in the Supreme Court was denied on July 28, 1954. Upon the remittitur coming down on August 2, 1954, defendant caused a memorandum of costs on appeal to be served and filed on August 12, 1954. The only items listed thereon were (1) Respondent’s brief $238.13, and (2) Answer

re

petition, Supreme Court, $117.83; total $355.96. The cost bill was verified by the attorney for defendant. It purportedly was served on plaintiff by mailing a copy to plaintiff’s attorney. Both attorneys had their offices in the city of Los Angeles. Counsel for plaintiff disclaimed receipt of any copy of the cost bill. Judgment was rendered for the amount claimed therein and execution issued.

Plaintiff thereupon made a motion “to strike memorandum of costs and disbursements on appeal, to vacate judgment entered thereon, and to recall and quash writ of execution issued therein.” This motion was supported by an affidavit by plaintiff’s counsel of record in which he asserted,

inter alia,

that no service of the memorandum of costs on appeal had been made upon him. Controverting affidavits were filed by opposing counsel and his secretary. The court denied the motion. Plaintiff appeals from the order.

By its order the trial court impliedly found that the memorandum of costs on appeal was in fact served by mail in accordance with the provisions of sections 1012 and 1013, Code of Civil Procedure. The affidavit of Alice Judelson, secretary to the attorney for defendant, definitely supports such a finding. By the express terms of section 1013, Code of Civil Procedure, “The service is complete at the time of the deposit” in the mail.

(McKeon

v.