Blair v. Brownstone Oil & Refining Co.

JAMES, J.

Plaintiff herein heretofore appealed to this court from a judgment entered in favor of defendant and by that appeal secured a reversal of the judgment, with an order that he might recover his costs of appeal. Upon the going down of the

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he duly filed in the superior court a memorandum setting forth a statement of costs and disbursements accruing upon the appeal. This bill of costs contained an item of $26.60 purporting to be for money paid to the official reporter of the superior court for transcript of evidence, and the items of $22.50 and $13.50 designated as the amounts paid for having printed the opening and closing briefs filed on behalf of appellant on the appeal. Defendant objected to these items being charged on the ground that they were not such as were taxable against it and the superior court disallowed the same. From that order the plaintiff has now appealed.

Section 1033 of the Code of Civil Procedure provides that the party in whose favor a judgment is rendered, and who claims his costs, “must deliver to the clerk, and serve upon the adverse party, ... a memorandum of the items of his costs and necessary disbursements in the action, . . . verified by the oath of the party, or his attorney or agent, . . . stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.” Section 1034 of the same code, immediately following, provides: “Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the

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is filed with the clerk below, deliver to such clerk a memorandum • of his costs, verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment.” The expense of printing briefs to be used in the appellate court, in our opinion, is not an expense intended to be considered as costs which the successful party shall be allowed to recover., Generally speaking, by the term “costs” we understand to be meant those fees and charges which are required by law to be paid to the courts or some of their officers, or the amount of which is expressly fixed by law. It has been held that a trial judge has discretion in determining

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