White v. Gaffney (1905) · DecisionDepot

White v. Gaffney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Oct 10, 1905 No. No. 190.Published

Before: Hall

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Holding. The court held that a judgment awarding costs and counsel fees is a substantive part of the judgment subject to appellate review, and that the abatement of the underlying nuisance does not moot an appeal regarding those costs.

Issues

Whether the abatement of a nuisance renders an appeal regarding the award of costs and counsel fees moot.
Whether an award of costs and counsel fees within a judgment is subject to appellate review.
Whether an appeal may be dismissed when the amount in controversy is less than three hundred dollars.

Disposition. Motion to dismiss denied.

Quotations verified verbatim against the opinion

“That part of the judgment awarding costs and counsel fees is as much a part of the judgment, subject to review on appeal from the judgment, as any other part of it.”

“The motion to dismiss the appeal is denied.”

Synopsis

Action to Abate Nuisance—Judgment—Costs and Counsel Fees— Subsequent Abatement—Appellate Jurisdiction.—This court has appellate jurisdiction in an action to abate a nuisance; and where the judgment includes costs and counsel fees, and they have not been paid, the abatement of the nuisance in fact does not satisfy the judgment nor deprive this court of appellate jurisdiction over it to determine any question involved therein, including the propriety of the allowance of cents and counsel fees, though less than three hundred dollars in amount; and a motion to dismiss such appeal will be denied.

HALL, J.

This is a motion by respondent to dismiss an appeal taken by defendant from a judgment in favor of plaintiff and against defendant, directing that defendant abate a certain nuisance, and further adjudging that plaintiff have and recover of and from defendant the sum of $292.50 as and for costs, expenses, and counsel fees incurred in the prosecution of said action.

Counsel for plaintiff insist that defendant having since the judgment abated the nuisance the judgment has been complied with (although the costs and counsel fees have not been paid), and that defendant cannot be heard to question the allowance of the costs and counsel fees, as costs and counsel fees are mere incidents of the judgment.

There is no merit in this contention. We do not conceive that even counsel for plaintiff will admit that the abatement of the nuisance satisfies the judgment for costs and counsel fees. It we should grant his motion and dismiss this appeal, we have no doubt that when he applies to the clerk of the trial court for a writ of execution to collect the judgment for costs and counsel fees, he will insist that it is a very important and substantial part of the judgment remaining unsatisfied. Certain it is that if the defendant be finally compelled by a writ of execution, or otherwise, to pay this judgment, she will have a realizing sense of its substance and importance.

That part of the judgment awarding costs and counsel fees is as much a part of the judgment, subject to review on appeal from the judgment, as any other part of it. We are not now discussing an order of the court taxing costs on a disputed cost bill filed subsequent to a judgment awarding costs, but we are discussing the judgment itself that awards costs and counsel fees.

[717]

The cases are numerous where, on an appeal from a judgment awarding costs, the appellate court has reviewed and modified the judgment in that respect. We will cite but a few:

Schmidt

Klotz,

130 Cal. 223, [62 Pac. 470];

Quitzow

White v. Gaffney

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Synopsis

HALL, J.

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