Welch v. Alcott

SLOSS, J.

By the judgment in this action the plaintiff recovered costs. He served and filed his memorandum in due time, whereupon the defendant moved to tax costs by striking out a number of items claimed. The court sustained the defendant’s objections to some of the items, but disallowed them as to others. From the order so made, in so far as it is unfavorable to him, the defendant appeals.

Whether or not plaintiff should have been allowed costs at all is a question that is discussed to some extent in the briefs. It does not arise on this appeal, but may be presented for consideration on the appeal from the judgment itself. All that we are here concerned with is the propriety of the various items of costs charged against the defendant over his objection. They are as follows:

[532]

1. The memorandum, included a charge of $87.40 for taking the deposition of the defendant, Alcott. The deposition was taken by the plaintiff before the trial, and was not, in fact, offered in evidence. But it does not follow that the expense of taking it could not properly be charged as an item of costs. Such expenses “are proper disbursements to put into a cost bill, unless it be shown that they were unnecessary, or that for some special reason.,they should not have been allowed. ... It is frequently proper and necessary for a party to have depositions taken, although afterward the case may take such a course as to make it unnecessary to use them. ’’

(Lindy

v.

McChesney,

141 Cal. 351, [74 Pac. 1034].) It is for the trial court to determine whether, under all the circumstances, the taking of the deposition was reasonably necessary to the protection of the rights of the party taking it.

(Lomita L. & W. Co.

v.

Robinson,

154 Cal. 36, 52, [18 L. R. A. (N. S.) 1106, 97 Pac. 10].) We cannot say that the court abused its discretion in deciding that question in plaintiff’s favor on the facts before it.