Scott v. Donahue

California Court of Appeal Nov 16, 1928 No. Docket No. 5690.Published

Before: Nourse

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Holding. The court denied the motion to recall the remittiturs, holding that the appellate court is required by statute to award costs to the appellant upon reversal of a judgment and lacks the authority to charge those costs against a trust fund.

Issues

Whether the appellate court has the authority to deviate from the statutory requirement to award costs to an appellant upon reversal of a judgment.
Whether costs on appeal can be charged against a trust fund when the respondent was the unsuccessful party in the litigation.

Disposition. Motions denied.

Quotations verified verbatim against the opinion

“The remittiturs followed the express terms of the statute (see. 1027, Code Civ. Proc.) in awarding costs to the appellant and against the respondent upon reversal of the judgment”

“we know of no rule that the unsuccessful party to such litigation may have his costs and expenditures charged against the trust fund which he has tried to defeat.”

“the appellate court has no such power upon a reversal of the judgment, because section 1027 of the Code of Civil Procedure, expressly withholds such power.”

NOURSE, J.

The respondents in these two consolidated cases have moved for the recall of the

remittiturs

upon the ground that they do not conform to the judgments in respect to the matter of costs on appeal. The

remittiturs

followed the usual course in awarding to appellants against the respondents their costs on appeal upon the reversal of the two judgments.

The actions involved two trust funds belonging to the former members of the local chapter of the Brotherhood of Railway Trainmen. The litigation arose because of the claim of the parent order that it was entitled to all the funds of the local chapter upon dissolution of the latter. The two causes were commenced by the appellant on behalf of his associate members of the local chapter, the judgments went against him, and these were reversed, with directions to distribute the funds among all the former members of the local chapter who were in good standing at the time of its dissolution “after deducting therefrom the costs of suit and other charges and fees properly chargeable against the trust fund.”

It is now claimed that, by reason of the language quoted, the respondents should not be charged with the costs on appeal. The

remittiturs

followed the express terms of the statute (see. 1027, Code Civ. Proc.) in awarding costs to the appellant and against the respondent upon reversal of the judgment, and we find nothing in the language quoted from the main opinion which supports the claim that we intended to depart from this statutory rule. The language of this

[797]

opinion had reference to that rule of equity, based upon the principle of agency, .which permits one who has sued on behalf of his associates to discover or preserve a common trust fund to have a charge against the fund itself for his costs and expenses. (See

Fox

Hale & Norcross S. M. Co.,

Scott v. Donahue

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NOURSE, J.

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