Bell v. Thompson

SHAW, J.

This is an appeal from an order denying plaintiff’s motion “for an order of court recalling and quashing the execution issued in the above-entitled action to the Sheriff of the City and County of San Francisco, and against Teresa Bell as an individual, and also for an order of court taxing the costs of the defendant, and for an order of court setting off the amount due the said plaintiff from the said defendant for money had and received by said defendant for the use and benefit of said plaintiff and the estate of said Thomas Bell, deceased.”

The facts, as shown by the record, are that on June 26, 1902, judgment was rendered in said action in favor of defendant; that on June 28, 1902, there was duly served upon plaintiff’s attorney a written notice of the court’s decision in said action, which notice, among other things, contained the following: “Also that the defendant in said action claims her costs and disbursements expended and incurred therein, and that the defendant’s bill of costs in said action has been filed, and a copy thereof is served upon you herewith. Also that judgment has been entered in said action. Dated June 28, 1902. Drown, Leicester & Drown, Attorneys for Defendant in said action.” That the memorandum of costs and disbursements claimed by defendant was duly served on plaintiff’s attorney on June 28, 1902, and service thereof

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admitted by an indorsement thereon, as follows: “Service and receipt of a copy of the within bill of costs, at San Francisco, this 28th day of June, 1902, is hereby admitted. T.

Z.

Blakeman, Attorney for Plaintiff.” Indorsed on said memorandum of costs and disbursements is the following: “Filed, June 30, 1902. C. A. Hunt, Clerk.”

The only part of the judgment brought up in the record is the concluding portion thereof, as follows: “And that the defendant Louisa J. Thompson, have and recover from the plaintiff herein her costs and disbursements herein, amounting to and taxed at the sum of one hundred and ninety-five and 35/100 dollars. Dated at Santa Barbara, Cal., this 26th day of June, A. D. 1902. (Signed) W. S. Day, Judge of said Superior Court.”

Thereafter, on July 28, 1902, plaintiff gave notice of her intention to move the court to vacate and set aside the judgment and grant her a new trial, upon a bill of exceptions which was thereafter settled and allowed, and on December 19, 1902, the motion made thereon was denied. Whereupon, plaintiff appealed from said judgment and order denying her motion for a new trial. That upon the hearing of such appeal the judgment and order were affirmed. Thereupon, on March 2, 1906, defendant caused an execution to be issued upon the judgment and against the plaintiff, and placed in the hands of the sheriff to collect the amount thereof.