Danley v. Merced Irrigation District

FINCH, P. J.

The plaintiff, as a land owner in the defendant District, brought the above-entitled action to restrain the District and its board of directors from entering into an unlawful contract obligating the District to pay certain persons a total sum of more than a million dollars. The trial court sustained defendants’ demurrer to the complaint without leave to amend and entered judgment in favor of defendants. The plaintiff appealed and the judgment was reversed with direction to overrule the demurrer, and the appellant was given judgment for his costs of appeal.

(Danley

v.

Merced Irr. Dist.,

66 Cal. App. 97 [226 Pac. 847, 854].) Within due time after the filing of the

remittitur

in the trial court, the plaintiff filed therein his memorandum of costs and disbursements on appeal. The defendants duly served and filed their notice of motion to reduce certain items claimed by plaintiff as costs, on the ground that the amounts thereof were excessive, and to strike out all of the items of the cost bill “on the ground that none of the same were paid or incurred by the said plaintiff and appellant, but that on the contrary the same were entirely incurred and paid by parties other than the plaintiff and appellant.” The motion was heard and determined upon affidavits and the court made an order “striking out all items.” The plaintiff has appealed from the order. The only evidence bearing upon the question in issue is contained in the affidavit of James F. Peck, attorney for plaintiff, and is as follows:

“That it is true that said L. E. Danley did not pay directly in the first instance any of the costs in the above-entitled action, nor in the companion case of

Kelsey

v.

Merced Irrigation District,

but the said Danley arranged for the payment

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by the Crocker-Huffman Land and Water Company of said’ costs, and said costs were paid by the Crocker-Huffman Land and Water Company, and in this behalf affiant alleges that said Crocker-Huffman Land and Water Company, being a land owner in said Merced Irrigation District (and said Danley being likewise an owner of land in said Merced Irrigation District, as alleged in the bill of intervention herein)., agreed with the said L. E. Danley that the said L. E. Danley should institute said action and prosecute said intervention in the name of the said Danley, and that the said CrockerHuffman Land and Water Company would advance to said Danley and for his use, all the costs that said Danley should expend in said action, and that if the said D'anley should recover the said costs the said Danley should pay to the Crocker-Huffman Land and Water Company such sums as it had expended or incurred therein, and said Danley, who is likewise a property owner in said District and interested in prosecuting the said action, in the same manner, but to a lesser amount than the Crocker-Huffman Land and Water Company, did commence and maintain the said suit and said appeals, under said arrangement, as to payment of costs of suit and appeals.