People v. Hawley

BISHOP, J.,

pro tem.

In each of the above-entitled actions a motion to strike the cost bill of the Los Angeles Bock & Gravel Company was made and denied. From the order (called “judgment”) denying the motions to strike in each of these cases appeals were taken. By stipulation in this court, the three appeals were consolidated for hearing; “based upon the fact”, the stipulation recites, “that the appeals taken in said causes all involved the same point”.

Each of the motions made in the court below was noticed “upon the grounds that said Memorandum of Costs and Disbursements was not filed and served, as required by section 1033 of the Code of Civil Procedure”. An affidavit

[550]

by one of appellant’s counsel was filed with the notice and in support of each motion, reciting that at the time of the service of the memorandum (a copy being received) the original had as yet not been filed. No other fact was set forth. A memorandum of points and authorities accompanied the notice of motion, and the only rule of law which it suggested had been violated, was that a cost bill must be first delivered and then served. There is, therefore, nothing in the record to justify the statement in appellant’s opening brief that their motions to strike were made on the three grounds: (1) that the cost memorandum was not filed and served as required by sections 1033

and 1034,

Code of Civil Procedure; (2) that costs were taxed against the city in the first cause of action, although judgment did not go against the city; (3) that three separate cost bills for $1868.47 each were filed, although that was the total sum claimed in all actions. It does not appear from the record that section 1034 was ever mentioned or that the second and third grounds were ever advanced in support of the motion in the court below; but if they were, the lower court was justified in disregarding them because they were not set forth in the notice of motion.

(Mojave etc. R. R. Co.

v.

Cuddeback,

(1915) 28 Cal. App. 439 [152 Pac. 943]; W.