Pouchan v. Godeau
Before: Murphey
Synopsis
Appeal—Eecokd Must be Certified by Judge—Stipulation of Parties not Sufficient.—The record on appeal from- an order taxing costs must be certified by the judge under section 953a of the Code of Civil Procedure, or rule 29 of the supreme court. Neither the certificate of the clerk nor the stipulation of counsel can take the place of the judge’s certificate.
Id.—Costs-—Counsel Fees in Libel or Slander.-—The one hundred dollars allowed by statute (Stats. 1871-2, p. 534) to the plaintiff for counsel fees if he is successful in a libel or slander case are penal and not part of the costs denominated as such. They should only be taxed in the statutory amount after final judgment.
Id.—Second Trial—Costs of First Trial.—The ordinary costs of a first trial of an action tried a second time, either because of the granting of a new trial or on reversal of the judgment; may ultimately be taxed in favor of the prevailing party.
MURPHEY, J.,
pro
tem.
This is an appeal from an order of the superior court of the city and county of San Francisco fixing costs.
After this case was once tried in the superior court, resulting in a verdict for appellant, a new 'trial was granted, whereupon issue was again joined before a jury and again resulted in a verdict in appellant’s favor.
After the second trial appellant seasonably and regularly filed and served a statement of his costs and disbursements incurred in both trials, and included therein an item of two hundred dollars on account of attorney fees, claiming such
[366]
under section 7 of the Libel and Slander Act (Stats. 1871-2, p. 534), that section providing that “In case plaintiff recovers judgment he shall be allowed as costs one hundred ($100) dollars to cover counsel fees in addition to other costs.”
Respondent insists that the appeal must be dismissed for the reason that appellant has failed either to bring up any authenticated bill of exceptions in pursuance of rule 29 of the supreme court' [144 Cal. lii, 78 Pac. xii ] or any record such as is contemplated by sections 953a, 953b and 953c of the Code of Civil Procedure.
The record before us contains certain papers designated as “transcript,” which is stipulated by counsel to be “a true and correct copy of the material papers on appeal . . . and that the same shall constitute the record on appeal herein and that the appeal herein shall be heard thereon”; and also a certificate of the clerk of the superior court that the papers contained in the transcript are true and correct copies of the originals of such papers on file in his office.
Neither this certificate by the clerk nor the stipulation can take the place of a judge’s certificate required by section 953a of the Code of Civil Procedure, because the law provides that a judge alone can certify as to what evidence was received and what proceedings had at the hearing before him. Neither parties litigant nor counsel can confer original or appellate jurisdiction on this court by stipulation or consent.
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