Sacramento & San Joaquin Drainage District Ex Rel. State Reclamation Board v. Reed

[612]

THE COURT.

The Sacramento and San Joaquin Drainage District was the plaintiff-eondemner in a condemnation action in which Thomas H. Reed and others were the defendants. The condemner appealed to this court from the judgment which fixed the amount of damages to be awarded. We reversed that portion of the judgment fixing severance damages and remanded the cause for a new trial on that issue. (215 Cal.App.2d 60 [29 Cal.Rptr. 847].) In preparing the remittitur the clerk of this court, following the mandate of rule 26(b) of California Rules of Court,* added the words “Appellant to recover costs.” When this fact was brought to our attention, we on our own motion ordered that the remittitur be recalled for correction.

“A remittitur may be recalled and corrected by an appellate court when the clerk’s entry of judgment for costs in the remittitur is improper, as where such entry is contrary to a constitutional provision. ...”

(In re McGee,

37 Cal.2d 6, 8 [229 P.2d

780];

see also Cal. Rules of court, rule 26(b).

*

)

The basic rule in eminent domain proceedings as to costs has been stated in

Heimann

v.

City of Los Angeles,

30 Cal.2d 746, 752 [185 P.2d 597]:

“It has long been the rule that in a proceeding in eminent domain, the party seeldng condemnation should be required to pay not only his own costs, but all proper costs of the owner of the land incurred in good faith. The reason for the rule is stated in the case of

City & County of San Francisco

v.

Collins

(1893) 98 Cal. 259 [33 P. 56] at page 262: