Eaton v. Southern Pacific Co.

CONREY, P. J.

Upon a former appeal by the defendant in this case the judgment was affirmed (22 Cal. App. 461, [134 Pac. 801]). The judgment on appeal was rendered July 7, 1913; became final August 6, 1913; an application for a rehearing in the supreme court was denied within thirty

[380]

days thereafter; a

remittitur

from this court went down to the superior court on September 8, 1913. Thereafter respondent filed her memorandum of costs, and appellant applied to the superior court for an order to strike out the memorandum of costs on the ground that the same had been illegally filed, and also demanded that certain items in the cost bill be stricken out upon the ground that they are not legally allowable as costs of the appeal. The items in dispute are: (1) One hundred and four dollars paid for a reporter’s transcript of the testimony taken at the trial and which respondent claims as an expense “for transcript of testimony used by plaintiffs in preparing record on appeal and amendments to defendant’s bill of exceptions used upon appeal.” (2) Ten dollars and eighty cents claimed by respondent as cost of printing answer to defendant’s petition for a rehearing in the supreme court. This appeal is by the defendant from an order denying said motion.

By an amendment to section 1027 of the Code of Civil Procedure relating to costs "on appeal, which amendment became effective on the tenth day of August, 1913, it is provided as a part of that section that “the party entitled to costs, or to whom costs are awarded, may recover all amounts actually paid out by him in connection with said appeal and the preparation of the record for the appeal, including the costs of printing briefs; provided, however, that no amount shall be allowed as costs of printing briefs in excess of fifty dollars to any one party.”

The record on this appeal shows that the reporter’s transcript was obtained by respondent solely for the purpose of assisting her counsel in the preparation of amendments to a bill of exceptions proposed by the defendant on its motion for a new trial in the superior court. The expense thus incurred was purely an expense in the conduct of the case in the superior court, and was not a part of the preparation of the record for the appeal. Therefore the item in question cannot be allowed even if, as contended by respondent, her right to costs is governed by the amendment of section 1027.