Burr v. MacLay Rancho Water Co.

JAMES, J.

Plaintiff herein appealed from an order made in the superior court denying his motion to tax the costs claimed by respondents as having been incurred by them as expense on an appeal taken to the supreme court from a judgment theretofore made in the action. That judgment on the appeal taken by respondents was by the supreme court modified.

(Burr

v.

Maclay Rancho Water Co.,

160 Cal. 268, [116 Pac. 715].) Subsequently a bill of costs was regularly filed in the superior court on behalf jointly of defendant and the interveners who were the appellants in the appeal mentioned. Plaintiff made his objections thereto in due time in writing and moved the court to disallow all of the items of the cost-bill on two grounds: 1. That because of a stipulation entered into between the parties the entry of any costs would be premature; and, 2. That interveners were not entitled to costs, and it could not be ascertained from the joint statement as to what costs were properly chargeable as the expense incurred by defendant and what by the interveners. It seems that after decision by the supreme court, reported in the volume and at the page above stated, the parties entered into a stipulation which, in part provided as follows: “During the currency of this agreement, all rights finally adjudged to either party by the judgment in the action of John Burr vs. the second party herein, and others, in the superior court of Los Angeles County, California, as modified and affirmed by the

[613]

supreme court by its judgment, shall be held in abeyance.” As the terms of that agreement present themselves to us they seem to indicate the understanding of the parties to have been only that their rights, as affecting the matter of taking water from their several lands, should be held in abeyance because they had, temporarily at least, agreed upon conditions affecting the matter. But giving the stipulation its greater effect, as claimed for it by appellant, it still falls short of showing any term which can properly be said to have limited respondents in their right to have the judgment as made in their favor perfected or completed by the insertion therein of costs allowed to them on appeal.