Fairfield v. Ahlstrom

[591]

HERNDON, J.

ccording to the notice of appeal, defendant and appellant Ahlstrom herein appeals from an order of the court “denying the motion under section 473 of the Code of Civil Procedure of California for permission to file his memorandum of costs herein, which included appearance fee, cost of deposition and $100 additional costs as attorney fee because the complaint herein was for libel and the court granted a nonsuit in favor of this defendant.”

It appears from the record that plaintiff and respondent herein filed an action against defendant and others; the complaint was in two counts, the first of which set forth a cause of action for libel and the second for malicious abuse of process. The trial of the action was commenced on or about February 1, 1961. On February 16, 1961, the court granted appellant’s motion for a nonsuit as evidenced by the following minute order: “Motion of defendant Robert O. Ahlstrom for a nonsuit is granted and the defendant Robert O. Ahlstrom is given judgment for his costs against the plaintiff Joseph W. Fairfield, in the sum of $__Let execution issue hereon. ’ ’

On March 27, 1961, appellant filed a memorandum of costs claiming $12.50 fee for filing answer, $70.05 costs of taking plaintiff’s deposition and $100 for attorney’s fees pursuant to section 836 of the Code of Civil Procedure. Immediately thereafter respondent filed a notice of motion for an order striking appellant’s memorandum of costs on the ground that it was not filed within the time allowed by the statute. Appellant conceded that his memorandum of costs was not filed within the allotted statutory time. Accordingly, on April 3, 1961, he filed his notice of motion for relief under section 473 of the Code of Civil Procedure with supporting affidavits.

On April 6, 1961, the court heard both motions, that is, respondent’s motion to strike the memorandum of costs and appellant’s motion for relief under section 473 of the Code of Civil Procedure. Respondent’s motion to strike the memorandum of costs was granted and appellant’s motion for relief under section 473 was denied. The present appeal is from the latter order.

Appellant’s first contention is that the trial court abused its discretion in denying his motion for relief under section 473. The declaration of his attorney, Mr. Friedman, explained his failure to file the memorandum of costs within the allowed time by stating that he was busily engaged in