Coast Electric Service, Inc. v. Jensen

KNIGHT, J.

Defendant appeals from an order denying his motion to strike from the files plaintiff’s memorandum of costs. The judgment in the action was entered and the memorandum of costs was filed on February 13, 1930, but the memorandum was not served within the succeeding five days, as required by section 1033 of the Code of Civil Procedure. On February 21, 1930, which was three days after the expiration of the statutory period allowed for such service, the court made an

ex parte

order, based on affidavit, purporting to grant plaintiff an additional 15 days within which to serve said memorandum; and the same was served within the extended time. Defendant then presented a motion to strike the memorandum from the files, and upon the failure of plaintiff to appear at the hearing of the motion, it was granted. Later, on plaintiff’s motion, the memorandum was restored to the files, and defendant renewed his motion to strike, which was denied.

[126]

The terms of section 1033 of the Code of Civil Procedure requiring the memorandum of costs to be served and filed not later than five days after the entry of judgment are mandatory, and failure to comply therewith extinguishes the remedy to recover the costs and operates as a forfeiture of the right thereto.

(Chapin

v.

Broder,

16 Cal. 403.) In other words, as said in

Griffith

v.

Welbanks & Co.,

26 Cal. App. 477 [147 Pac. 986, 988], if a “party fails within the time prescribed to file

and

serve his memorandum of costs, then he is to be conclusively deemed to have waived the costs, if any, accruing in his favor” (see, also,

Riddell

v.