Muller v. Muller

SALSMAN, J.

William Muller appeals from two orders of the trial court: (1) an order striking his memorandum of costs, and (2) an order refusing to vacate the order striking the memorandum of costs.

In the main action Lelah Muller sued Otis Robinson, Rebecca Aronov and Edward Danner, Jr., to quiet title to certain real property. Appellant William Muller was not named as a party defendant in that action because Lelah Muller had previously obtained a decree against him quieting her title to the subject property and the District Court of Appeal affirmed an order of the trial court refusing to set aside this judgment.

(Muller

v.

Muller,

141 Cal.App.2d 722 [297 P.2d 789].)

Appellant first moved to be joined as a party defendant in Lelah Muller’s action against Robinson et al.; next he moved to consolidate Lelah Muller’s action with an action of his own then pending in the same court, and finally he made two motions to intervene in the Lelah Muller-Robinson action. All motions were denied. The appellant’s appeal from the order denying his motion to intervene was affirmed on appeal.

(Muller

v.

Robinson,

193 Cal.App.2d 835 [14 Cal.Rptr. 693].) Thereafter Lelah Muller dismissed her action against Robinson. Appellant then filed a memorandum of costs in the total sum of $68.25 incurred in his vain and futile attempt to become a party in the Lelah Muller-Robinson action. It is from the court’s order striking this memorandum of costs that this appeal is taken.

The right to recover costs is purely statutory and in the absence of statute no costs can be recovered by either party.

(People

v.

Feraud,

45 Cal.App. 765-769 [188 P. 843];

Fox

v.

Hale & Norcross S.M. Co.,

122 Cal. 219-223 [54 P. 731] ;

Duley