Carpy v. Dowdell

VAN DYKE, J.

This is an appeal from an order refusing to hear the motion of the defendants to tax the cost hill filed by the plaintiff. The defendants within the proper time served on the plaintiff a notice that they were dissatisfied with the cost hill filed by the plaintiff, and that they would move the court to strike out certain items therein, and to retax said costs. The hearing of the matter was continued from time to time by

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stipulation of counsel, and on October 25, 1897, in open court, counsel for defendants applied orally to the court for an order as prayed for in the notice of motion to strike out and to tax said cost bill. Counsel for plaintiff thereupon objected to the reading of the notice of motion, or to the hearing of any application to tax costs, or to strike out the memorandum of costs, on the ground that no written motion had been presented or filed, and the court sustained the objection made by counsel for plaintiff on said ground.

The action of the court in refusing to act upon defendants’ motion is based upon a literal construction of that portion of section 1033 of the Code of Civil Procedure which reads as follows: "A party dissatisfied with the costs claimed may, within five days after notice of the filing of the bill of costs, file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge thereof at chambers.” The practice, however, has been quite general, after a written notice of motion has been given of intention to strike out or to amend or retax a cost bill, to make the motion according to the notice before the court orally, and no good reason appears why a separate motion should be filed. A statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency. (Sutherland on Statutory Construction, sec. 323;

Merced Bank v. Casaccia,

103 Cal. 645.) In seeking the object which section 1033 of the Code of Civil Procedure was intended to accomplish, it may be proper to look at the law as it existed before this section was amended. The section, as found in the first edition of the codes of 1873 and 1874, is the same as section 510 of the old practice act. As it then stood it did not provide for service of the memorandum of costs on the adverse party, and there was nothing providing the manner in which a party dissatisfied with the cost claimed might obtain relief. The practice, however, had been determined by the decisions of the courts. Thus, in