Eistrat v. Humiston

GRIFFIN, J.

In an action by plaintiff and his wife against defendants William I. Humiston and Marjorie Humiston, husband and wife, plaintiffs recovered judgment against William I. Humiston alone for $19,157.46, plus interest and costs. The court denied judgment against Marjorie Humiston and allowed costs in her favor. Plaintiffs were denied allowance for claimed attorney’s fees alleged to be due them on the note involved, because no attorney’s fees had been actually incurred. Plaintiffs appealed from that part of the judgment denying them such attorney’s fees, holding that Mrs. Humiston was not liable on said note, and in giving her judgment for her costs. Other grounds for reversal of the judgment are set forth but are not here material. For further particulars see

Eistrat

v.

Humiston,

150 Cal.App.2d 391 [309 P.2d 925], where this court affirmed the judgment as rendered. A hearing by the Supreme Court was denied on June 19, 1957. Thereafter, defendants jointly filed their memorandum of costs on appeal amounting to $126.60. On July 9th, plaintiffs moved to tax those costs and also moved for offset of those costs against the unpaid judgment in favor of plaintiffs and against William I. Humiston individually. Plaintiff’s affidavit and supplemental affidavit in support of the motion recites that he believed the $126.10 was expended by William I. Humiston and not by his wife Marjorie; that it was excessive in amount; that after plaintiffs filed this suit William I. Humiston transferred his property to his wife, was unable and failed to pay any portion of the judgment, and that it would be inequitable not to allow the $126.10 costs to be offset against the judgment.

[91]

Defendants’ attorney, after denying generally the facts related in plaintiff's original affidavit, recites in his affidavit, in opposition to the motion, that this amount was paid to the printing firm by his personal check on behalf of defendant and his wife in contesting plaintiffs’ appeal from the portion of the judgment indicated; that in order to compensate their attorney defendants did, on July 3d, assign to him, in writing, the costs awarded them on the appeal, and such assignment was filed with the clerk of the court to be considered in connection with the plaintiffs’ motion; that he is the owner of said sum and plaintiffs have no offset against affiant; that such costs were properly incurred on behalf of both respondents on the appeal and no formal abandonment of the appeal as to Marjorie was ever filed in any court; that said sum was properly due to them jointly and it would be unjust and inequitable to permit plaintiffs to offset any sum or amount of the judgment for costs against the judgment rendered solely against William I. Humiston; and that it would also deprive affiant of being reimbursed for costs necessarily incurred by him to sustain the ruling of the trial court on appeal.