Healey v. Superior Court

THE COURT.

An application for a writ of review was made to the district court of appeal for the third appellate-district, and the justices of that court being unable to concur in a judgment, the matter was transferred to this court for hearing and determination.

After a careful examination of the questions involved we have adopted the views expressed by the learned judge of the trial court, written at the time of defendant’s motion to strike out plaintiff’s bill of costs.

‘‘ This action was commenced in the justice’s court of Santa Rosa township, where judgment went for defendants. An appeal was taken to this court, the cause tried anew on appeal, and judgment went for plaintiff. Defendants now move to strike out plaintiff’s bill of costs on the ground that the court has no jurisdiction to allow costs inasmuch as the judgment

[23]

on appeal was for a sum less than three hundred dollars. In other words, defendants insist that there is no statutory warrant for the allowance of costs in cases appealed from the justice’s court and tried anew on appeal in the superior court except in the rare instances where the appealing party might obtain a judgment for the sum of three hundred dollars or over.

“If defendant’s contention be accepted as the law, it will work a complete and radical change in the practice and procedure of this state as it has heretofore stood.

“The arguments made by the moving parties are deserving of more consideration than can be given them in this brief opinion. The subject has been industriously and widely investigated.

“Counsel have cited many authorities from other jurisdictions to sustain the claim that the allowance of costs is merely a statutory creation and was unknown to the common law. In those states still largely influenced by the common law rule there can be no doubt but that the question of the allowance of costs is viewed with disapproval, if not with a spirit of positive hostility. In this state the allowance of costs is an incident to a cause of action, and it has never been regarded harshly by our courts. The spirit of our code system favors the allowance of costs as an examination of the several sections touching the subject will reveal. Aside from the anomaly of the position in which we would find ourselves by holding that costs are allowable to the prevailing party in the justice’s court and not allowable in the superior court on appeal, except in rare and unusual cases, we are confronted with the interpretation placed upon the statutes of our state by the bench and bar for a period of sixty-two years. Since the organization of our state government it has been the universal practice of the superior court of California to allow costs to the prevailing party on an appeal to the superior court. While the question has never been squarely determined by our state supreme court, there can be but little doubt that the practice recognized by the superior court'has the sanction of the highest court of our state. This long established practice amounts to more than mere custom for it must have its origin in the belief that warrant for the allowance of costs is to be found in the language and spirit