Whipple v. Cowdrey

STONE, J.

— Appellants Whipple, husband and wife, appeal from an order taxing costs arising from a prior appeal.

(Whipple

v.

Haberle,

223 Cal.App.2d 477 [36 Cal.Rptr. 9].) Appellant Cowdrey challenges one item of cost allowed. Because both parties are appellants here and Whipples were appellants and Cowdrey was a respondent in the prior appeal, we shall herein refer to the Whipples as “plaintiffs” and to Cowdrey as11 defendant. ’ ’

The background of the litigation is, briefly, that plaintiffs brought an action against five defendants, some of whose interests were identical. Two of the defendants, Mr. and Mrs. Haberle, filed a cross-complaint against plaintiffs. The trial court entered judgment against plaintiffs on the complaint and also on the cross-complaint, Plaintiffs appealed, and in

[503]

Whipple

v.

Haberle, supra,

this court reversed the judgment on the complaint as to defendant Cowdrey only; otherwise the judgment was affirmed as to the complaint and the cross-complaint.

The opinion made no mention of costs. Consequently the clerk of this court followed rule 26(b) of California Rules of Court and inserted in the remittitur: “Appellants to recover costs on appeal.” Prom this ambiguous language arises the question of what costs do plaintiffs recover and from whom.

No motion was filed pursuant to rule 25(d), to have the remittitur recalled by this court to correct the omission of a specific allowance of costs in the opinion. Rather, the parties moved in the trial court to tax costs.

Plaintiffs claimed the full cost of reporter’s and clerk’s transcripts and of briefs on appeal. The trial court determined that four separate interests were represented by the various defendants and, further, that Cowdrey represented a single interest. Since she was the only losing defendant, one-fourth of the allowed costs on appeal were taxed to her. However, plaintiffs were denied any part of the costs of briefs for petitions for rehearing and for hearing in the Supreme Court, and they were denied reimbursement from Cowdrey for costs paid the successful defendants.