Gibson v. Thrifty Drug Co.

NOURSE, J. pro tem.

*

Los Angeles Union Terminal, Inc., appellant corporation, appeals from an order retaxing costs against it. The appeal is taken upon a settled statement of facts.

The relevant facts are: Plaintiff commenced an action to recover damages for personal injuries. She named as defendants 17 corporations, 2 individuals and more than 40 persons whom she sued under fictitious names. One of the defendants named was Borun Bros., a corporation. Both it and plaintiff demanded a- trial by jury. Borun Bros, deposited the initial jury fees and paid all jury fees assessed for each day of the trial with the exception hereinafter noted. At the close of evidence the trial court directed a verdict in favor of Borun Bros, and judgment was entered in its favor. After the verdict was directed in favor of Borun Bros, the plaintiff and the appellant, Los Angeles Union Terminal, Inc., agreed to divide the jury fees for the day upon which arguments to the jury were had and agreed to divide and did divide the expenses of the jury during the time of their deliberations.

The jury returned a verdict in favor of the plaintiff and against Los Angeles Union Terminal, Inc. Judgment upon this verdict was entered on April 1, 1958. Within due time and on April 7th, plaintiff served and filed her memorandum of costs and disbursements in which she claimed as a part of her costs the jury fees and expenses paid by her. Appellant gave notice of motion to tax costs. Thereafter on April 10th Borun Bros, caused judgment to be entered in its favor and filed a memorandum of costs in which it claimed among other things the jury fees paid by it in the sum of $650. On April 11th, plaintiff filed her notice of motion to amend her memorandum of costs so as to include in her claim for costs the $650 claimed by Borun Bros, in its memorandum of costs and

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disbursements. Appellant opposed the motion to amend but the trial court granted the motion and retaxed the plaintiff’s costs in the sum of $746.80; this sum included the $650 jury fees paid by Borun Bros, and for which it claimed judgment against the plaintiff. It is the $650 included in the judgment for costs against it which appellant attacks on this appeal.

Plaintiff’s rights to costs are covered by sections 1032 and 1033 of the Code of Civil Procedure. Section 1032 of the Code of Civil Procedure insofar as relevant here provides in substance that in the superior court a plaintiff who secures a favorable judgment for damages is entitled to costs, as of course, unless his recovery be less than the sum of $3,000. Section 1033 provides that the party in whose favor the judgment is rendered and who claims “his costs” must serve and file a memorandum of the items of ‘‘ his costs and necessary disbursements” within 10 days after the entry of the verdict. Costs and disbursements are synonymous.