Elledge v. Superior Court

THE COURT.

In an action brought by the petitioner against D. W. Ridenour et al. in the superior court of Lassen county, judgment was entered in his favor for the amount of two hundred and ninety dollars damages. Thereafter the defendants therein filed a memorandum of costs amounting to ninety-two dollars. Plaintiff thereupon moved the court to strike this memorandum of costs from the files,upon the ground that as the judgment made no provision regarding costs the defendants were not entitled to recover their costs. The court granted this motion, but immediately thereafter, of its own motion, made and caused to be entered the following order: “Ordered that the judgment entered herein be reduced the full amount of defendants’ cost bill herein, to wit, ninety-two dollars.” The plaintiff has obtained a writ of review for the purpose of having this order annulled, upon the grounds that it was without the power of the court to make it.

The order sought to be annulled was a special order made after final judgment, in direct terms modifying the judgment previously given, and by express provision of the statute is made appealable. (Code Civ. Proc., sec. 939.) Although-the cost bill is referred to as the basis of its action, the order of the

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court applies to the judgment and not to the cost hill. The order could have been reviewed either upon an appeal tahen directly therefrom, independent of an appeal from the judgment, or its correctness could have been determined upon an appeal from the judgment as modified in accordance with its terms. Being an appealable order, it cannot he reviewed upon a writ of

certiorari.

(Code Civ. Proc., sec.

1068.)

This subject has recently been very fully considered in

Southern Cal. Ry. Co. v. Superior

Court, 127 Cal. 417, and this rule is there specifically declared.

The writ is discharged.