Bue v. Superior Court

California Court of Appeal Jul 10, 1928 No. Docket No. 3611.Published

Before: Plummer

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Holding. The court held that where parties in a consolidated action are both actors and defendants, each is entitled to recover costs as a defendant, and the trial court must apportion and tax costs accordingly rather than ordering each party to pay their own.

Issues

Whether a trial court may order each party to pay their own costs in a consolidated action where both parties were both actors and defendants.
Whether the refusal to award mandatory costs is a jurisdictional error correctable by a writ of review.

Disposition. Annulled and remanded

Quotations verified verbatim against the opinion

“Allowance of costs where the statute makes it mandatory, is also a jurisdictional question, and a refusal to award costs where the statute awards them, may be corrected by a writ of review.”

“In so far as either party was a defendant, he is entitled to recover costs.”

“the trial court directed to proceed to ascertain and adjust the costs between the respective parties, and enter judgment in favor of each party, in the amount to which it may be found that he is justly entitled.”

PLUMMER, J.

This matter is before us upon an application for a writ of review seeking an order of this court annulling and setting aside that portion of a judgment entered in respondent court on the ninth day of February, 1928, wherein it was adjudged that neither party to the action hereinafter named should recover costs.

[149]

The record shows that on or about the fourth day of March, 1927, one Harry W. Glover commenced an action in the Justice’s Court of Township Number 6, in the county of Shasta, against the petitioner herein to recover the sum of $204.07 to cover damages alleged to have been sustained by the plaintiff in an automobile collision caused by the negligence of the petitioner therein named, Salve Bue, as defendant. Thereafter, and on August 26, 1927, the petitioner herein filed in said action an answer to the complaint filed by the said Harry W. Glover in said Justice’s Court, and also a cross-complaint, in which the petitioner, Salve Bue, named the said Harry W. Glover and Oscar Hill, defendants. In his cross-complaint the petitioner alleged that he had been damaged in the sum of $200 by reason of the automobile collision which is described as the same collision as that set forth in the complaint filed by Harry W. Glover, wherein the said Salve Bue alleged and claimed that said collision was due to the careless and negligent manner in which an automobile owned by the said Harry W. Glover had been driven and managed by his agent, Oscar Hill, named as one of the cross-defendants.

Thereafter, Harry W. Glover filed an answer to said cross-complaint and also a notice of motion to strike "out said cross-complaint, on the ground that a cross-complaint is not permissible as a pleading in a Justice’s Court. Following the proceedings herein stated, it was stipulated and agreed between the parties that the cross-complaint might be treated as a complaint in a separate action in the justice’s court, and that both actions might be tried jointly. Thereupon, the actions were so tried, and judgment was entered in the Justice’s Court that neither party was entitled to recover from the other upon the alleged causes of action set forth in the complaints of the respective parties. Thereafter, both parties appealed to the superior court of the county of Shasta, where the cause was then tried before a jury and the jury returned a verdict that neither party was entitled to recover from the other, and judgment was thereupon entered, concluding with the following words: “It is therefore ordered, adjudged and decreed that neither said Harry W. Glover nor Salve Bue, the parties in this action above named, shall recover anything from the other party, and that each of said parties shall pay his own costs

Bue v. Superior Court

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PLUMMER, J.

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