Christenson v. Cudahy Packing Co.

NOURSE, J.

Plaintiff had recovered a money judgment against the defendant, from which the latter appealed. The supreme court modified the judgment and ordered that the

[238]

defendant recover its costs on appeal. When the

remittitur

was sent down the defendant, in due course, filed its memorandum of costs in which were included four separate premiums paid on a surety bond to stay execution of that judgment. On motion of the plaintiff these items were ordered stricken from the bill and the appeal is taken from that order.

The right to recover costs is purely statutory.

(Turner

v.

East Side Canal & Irr. Co.,

177 Cal. 570, 573 [171 Pac. 299];

Estate of Gallo,

71 Cal. App. 352, 353 [253 Pac. 66].) Section 1027 of the Code of Civil Procedure provides that the prevailing party on appeal “may recover all amounts actually paid out by him in connection with said appeal, and the preparation of the record for appeal, including the costs of printing briefs ...” Section 1034 of the Code of Civil Procedure provides that a party seeking to recover costs awarded by an appellate court must file a memorandum of costs verified in the manner prescribed in section 1033, which relates to costs in the trial court. By the latter section it is required that the party verify the memorandum, stating that the sums listed have been necessarily expended in the action. Reading these sections together we find that the party to whom costs are awarded on appeal is entitled to recover only such amounts actually paid out by him as have been necessarily incurred in the action.

In

Sime

v.

Hunter,

55 Cal. App. 157 [202 Pac. 967]; it was held that the prevailing party on appeal was not entitled to recover as costs the sums paid out by him for a copy of a transcript used by him in preparing the appeal and which was not ordered by the trial court, or the sums paid out to cover the traveling expenses of his attorney to and from the hearing in the appellate court.