Gaffey v. Mann

[713]

HALL, J.

This is an appeal from a judgment entered against plaintiff upon the going down of the

remittitur

from this court, reversing in part an order of the superior court striking out all the items of a cost-bill filed by defendant after the dismissal of an action for slander.

(Gaffey

v.

Mann,

3 Cal. App. 124, [84 Pac. 424].) In due time after the filing of the

remittitur

from this court in the lower court, the defendant filed his memorandum of costs on appeal, and thereafter, and after the expiration of the time for plaintiff to object or except thereto, and plaintiff having filed no objections_ thereto, the court, without notice to plaintiff and in his absence, entered judgment against plaintiff for the sum of $100, as and for defendant’s costs in said court, and the further sum of $32, for his costs incurred on the former appeal.

Appellant now insists that this judgment must be reversed, for the reason that it was taken against him in his absence and without notice. But we do not think that this contention is sound.

Plaintiff brought the action for slander, and thereafter dismissed it, and caused the clerk to enter a dismissal thereof after defendant had incurred costs in taking steps to procure a dismissal thereof.

(Gaffey

v.

Mann,

3 Cal. App. 124, [84 Pac. 424].) Thereupon defendant filed his cost-bill, containing two items, to wit, $2 for clerk’s fees for his appearance, and $100 for counsel fees. Plaintiff thereupon moved to strike out each and every item thereof upon various grounds, in which were presented questions of fact as to the necessity for incurring such costs, and the validity thereof as matter of law. The court granted his motion, but upon the appeal to this court the order was reversed so far as it struck out the item in defendant’s cost-bill of $100 for counsel fees, upon the ground, as clearly appears from the opinion, that upon the facts and the law defendant was entitled to such costs. This left the cost-bill intact as originally filed, save as to the item of $2 for clerk’s fees, and there was nothing to do but enter judgment accordingly for the costs thus allowed. Costs are but an incident to the judgment. In this case judgment of dismissal had been entered, which carried with it a right to defendant to recover costs. He filed his cost-bill. Plaintiff filed his objections thereto, which having been passed upon by the trial court and this court, he