Eades v. Los Angeles Ry. Corporation

LANGDON, P. J.

This is an appeal from an order of the superior court made after judgment in favor of the defendant Los Angeles Railway Corporation, the appellant here, which order granted the motion of plaintiff to tax costs and struck from the cost bill of said defendant an item of $8.50 for the taking and transcribing of the deposition of plaintiff, and an item of $17 for the taking and transcribing of the deposi

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tion of F. C. Funk, one of the defendants. The motion to tax costs was made upon the grounds that the items were not taxable under the law and that the deposition of F. C. Funk was taken without the notice or knowledge of the plaintiff. Upon the hearing of the motion the parties stipulated as to all material facts, from which stipulation it appears that the deposition of plaintiff was taken by the defendant and appellant under and by virtue of the provisions of subdivision 1 of section 2021 of the Code of Civil Procedure, said deposition having been taken upon stipulation of all of the parties to the said action. It also appears that the deposition of F. C. Funk was taken upon a stipulation entered into between counsel for defendant Funk and counsel for defendant Los Angeles Railway Corporation, the appellant, but that the counsel for plaintiff did not sign said stipulation. and had no notice of the taking of said deposition, and plaintiff was not represented at the taking thereof.

In addition to the stipulations regarding these facts, upon the hearing of said motion, the appellant filed an affidavit of its counsel to the effect that both depositions were necessary to the preparation and trial of its case. No evidence was offered by the plaintiff to contradict this affidavit, and the motion to tax costs was not made upon the ground that the depositions were not necessary.

[1]

It is stated to be the rule that items for taking depositions are proper disbursements to put into a cost bill unless they are unnecessary or for some special reason should not be allowed.

(Lindy

v.

McChesney,

141 Cal. 351, 353, [74 Pac. 1034];