Gerstein v. Smirl

California Court of Appeal Jul 20, 1945 No. Civ. 14799Published

Before: White

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Holding. A defendant who successfully defeats a plaintiff's claim is entitled to recover costs as the prevailing party under Code of Civil Procedure section 1032, even if the defendant also unsuccessfully pursued a cross-complaint in the same action.

Issues

Whether a defendant who is awarded nothing on a cross-complaint is entitled to recover costs from an unsuccessful plaintiff.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“a party who defeats an action by a counterclaim is as much entitled to his costs as is a party who defeats it by any other means.”

“Although defendant did not recover on her cross-complaint, she was the prevailing party in the court below because plaintiff was denied recovery against her.”

WHITE, J.

Plaintiff instituted this action to recover damages allegedly sustained by him in an automobile accident as the result of defendant’s negligence. By her answer defendant denied any negligence upon her part, alleged contributory negligence on the part of plaintiff, and by cross-complaint sought to recover damages allegedly suffered by her in the same accident. Upon trial of the action, the jury returned a verdict denying relief to both parties under their respective pleadings. Defendant filed a memorandum of costs and disbursements, and judgment was entered upon the verdict that plaintiff recover nothing from defendant, and that “said cross-complainant, Helen V. Smirl, recover from said cross-defendant, Sam Gerstein, nothing, together with costs and disbursements incurred in this action amounting to the sum of $147.80.”

Thereafter, appellant moved to retax costs and to strike out defendant’s cost bill on the ground (among others not raised on appeal) “that in said action a cross-complaint was filed by Helen V. Smirl against Sam Gerstein . . . and . . . that both the complaint and cross-complaint were tried at one and the same time by the same evidence, by the same jury and with the same witnesses and that it cannot be determined to which portion of the action the costs are attributable inasmuch as the costs were attributable to both the complaint and the cross-complaint.” Plaintiff has appealed from the judgment and from the order denying said motion.

The sole question presented by this appeal is whether a defendant who is awarded nothing on his cross-complaint is entitled to recover costs of suit from an unsuccessful plaintiff.

“The right to recover costs is entirely statutory and ‘the measure of the statute is the measure of the right’ ”

(Estate of Johnson,

198 Cal. 469, 471 [245 P. 1089] ;

Moss

Underwriters’ Report, Inc.,

12 Cal.2d 266, 274 [83 P.2d 503]). “In the superior court. . . costs are allowed of course: ... to the defendant upon a judgment in his favor” in “an action

[240]

Gerstein v. Smirl

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WHITE, J.

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