Crittenden v. S.F. Savings Union (1910) · DecisionDepot

Crittenden v. S.F. Savings Union

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

California Supreme Court Jan 22, 1910 No. L. A. 2329Published

Before: Shaw

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Holding. The court held that appellants were not entitled to costs for the appeal from the order denying a new trial, but were entitled to costs for the appeal from the judgment, as the latter was modified by the court.

Issues

Whether the clerk had authority to enter a judgment for costs in an appeal from an order denying a new trial that was affirmed.
Whether the transfer of interest in the subject-matter of the suit by an appellant during the pendency of an appeal precludes the recovery of costs by the original party.

Disposition. reversed

Quotations verified verbatim against the opinion

“Under these circumstances the clerk had no authority or power to enter the judgment in favor of the appellant for costs in case No. 1927.”

“The appellants were, however, entitled to the costs of appeal from the judgment and it was error to strike that memorandum of the costs in case No. 1913 from the files.”

“Where a transferee pending a suit permits it to be prosecuted in the name of the original parties, there is no rule of law that prevents those parties from recovering costs of suit.”

Synopsis

The facts are stated in the opinion of the court.

Richards & Carrier, and James L. Crittenden, for Appellants.

SHAW, J.

This is an appeal from an order striking from the files two memoranda of costs filed by the appellants herein in the superior court, embracing the alleged costs of certain former appeals to this- court. .

In the action of

Kate M. Bell and James L. Crittenden

San Francisco Savings Union,

the defendant San Francisco Savings Union, upon a cross-complaint, obtained judgment for the foreclosure and sale of the land which was the subject .of the suit, for the purpose of paying a large sum of money to the San Francisco Savings Union out of the proceeds thereof. Teresa Bell moved for a new trial. So also did Crittenden and the Oil Company. These motions were denied. Crittenden and the Oil Company appealed from the judgment. Teresa Bell also appealed from parts of the judgment, and both of said appeals were presented in one transcript num

[203]

bered L. A. 1913, filed in this court on May 17, 1906. Crittenden and the Oil Company also appealed from the order denying their motion for a new trial, and so also did Teresa Bell, the two appeals last mentioned being embodied in one transcript numbered L. A. 1927, filed in this court on June 18, 1906. In this court these appeals were all submitted together and the opinion disposing of them is reported in 153 Cal. 64, 77, [94 Pac. 225].

The conclusion of that opinion is as follows: “The order •denying both motions for a new trial is affirmed. The cause is remanded to the lower court, with directions to modify the judgment by deducting from the amount directed to be paid to the San Francisco Savings Union the sum of $16,679.85, and •as so modified, the judgment will stand affirmed.” Nothing was said in the opinion, or in the order of modification, concerning the costs of appeal. The appeals from the judgment, embraced in case No. 1913, were therefore governed by rule 23 of this court providing that “in all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as. to the costs of appeal, the clerk will enter upon the record, and insert in the

Crittenden v. S.F. Savings Union

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Synopsis

SHAW, J.

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