San Francisco Savings Union v. Long

HARRISON, J.

The question presented on this appeal is a portion of the aftermath of

San Francisco Savings Union

v.

Long,

123 Cal. 107. In that case this court reversed the judgment of the superior court and remanded the cause for a new trial, in accordance with the opinion then rendered. In issuing the

remittitur

the clerk added to the aforesaid judgment the words “appellants to recover costs of appeal herein,” under the provisions of rule XXIII of this court, which provides 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 costs of appeal, the clerk will enter upon the record, and insert in the

remittitur,

a judgment that the appellant recover the costs of appeal.”

After this

remittitur

had been filed in the superior court, the appellants filed with the clerk of that court a memorandum of their costs upon the appeal, and sought to recover the same from the plaintiff, the respondent herein. The plaintiff, however, obtained from the court an order perpetually staying the issuance of an execution for said costs against it. From this order the present appeal has been taken.

Neither in the decision of this court nor upon the face of the

remittitur

was designated the parties from whom the costs were to be recovered, and it becomes necessary, therefore, to examine the case itself for the purpose of determining who were the parties adverse to the appellants upon that appeal, since it is only those parties from whom they are entitled to recover their costs. The action, as stated in the opinion, was an action of interpleader, brought by the plaintiff to have the defendants litigate between themselves and have determined to whom the money involved in the action should be paid. As also stated therein, in such cases there may always be a twofold contest and two sets of pleadings: 1. As to the right of the plaintiff to bring the suit and force the defendants to interplead; and 2. If such right is maintained, the several complaints of the defendants in which their respective