People Ex Rel. Department of Public Works v. Bowman

LILLIE, J.

In a condemnation proceeding brought by the State for highway purposes in which compensation for the taking was later assessed by the jury at $28,000, two expert valuation witnesses, Elmer Moody and Ed Roy, testified on behalf of defendant and the only respondent herein, John F. DeCosta. After the jury verdict the trial court, on motion of the defendant, ordered costs of suit taxed at $402.10, which award became part of the judgment of condemnation. The State appeals from that part of the order fixing defendant’s costs and awarding the same in excess of $14.60, and denying its motion to strike certain items from the notice of motion to tax costs; and from that portion of the judgment of condemnation awarding defendant costs of suit in excess of $14.60.

The sole issue advanced by appellant is whether, in a condemnation proceeding, a defendant may be awarded as costs of suit, appraisal fees and in preparation for trial costs of expert valuation witnesses employed by him.

Appellant concedes the propriety of $14.60 of the total amount allowed, which includes ordinary witness fees of the valuation experts for their court attendance and mileage; but questions the validity of any allowance and assessment of $387.50 designated in defendant’s memorandum of costs as appraisal fees and preparation for trial of Moody and Roy, two expert valuation witnesses employed by defendant.

Although the witness fee and mileage for the appearance in court of an ordinary witness are taxable as costs of suit in a civil action under the general section on costs, Section 1032, Code of Civil Procedure, the rule that in the absence of statutory authority there is no right to recovery of costs is generally recognized

(Hogan

v. Ingold, 38 Cal.2d 802, 814 [243 P.2d 1, 32 A.L.R.2d 834];

McIntosh

v.

Crandall,

[418]

47 Cal.App.2d 126, 127 [117 P.2d 380];

Turner

v.