Dooly v. Norton

By the Court, Sprague, J.: The judgment was rendered February 21st, 1870; and on the twenty-third of the same month the plaintiff filed his memorandum of costs, etc. At the next term of the Court, defendant Norton moved that the costs be retaxed. The motion was dismissed on the ground that the Court had no jurisdiction of the motion, as the judgment had been entered at a former term of the Court. The defendant appeals from the judgment and the order dismissing the motion.

Had the order dismissing the motion been made before the rendition of the judgment, it might have been reviewed under an appeal from the judgment, and might have been presented by a statement on such appeal. But the question here presented is, whether an appeal lies from the order, as a special order made after final judgment. In Levy v. Getleson, 27 Cal. 688, the order denying the motion to retax the costs was made before the judgment was entered, and it was held that the order was not appealable, as it was not made after the final judgment, and that the question of its correctness might be raised by a statement annexed to the judgment roll. It was also held in Stevenson v. Smith, 28 Cal. 105, that an error in the taxation of costs must be reviewed and corrected on an appeal from the judgment. In that case the motion and order were made before the entry of the judgment. In Lasky v. Davis, 33 Cal. 677, the costs were retaxed on the motion of the defendant. The order was made more than three months after the entry of the judgment, and from the order the plaintiff appealed. The [442]appeal was dismissed on the ground that the order was not an order, after final judgment, within the meaning of section three hundred and forty-three of the Practice Act, but amounted to a modification or amendment of the judgment; that the order, though made after, will be deemed in law to have been made before the entry of the judgment. The authorities which are cited by the Court are those above mentioned and Votan v. Reese, 20 Cal. 90.) The last mentioned case merely decided that the costs could not be considered in determining whether the matter in dispute was sufficient to give the Supreme Court jurisdiction of the appeal from the judgment.

The order made on the motion to retax the costs in an action is a proper subject for review, in some mode, in this Court. If made before the judgment is rendered, it may be reached by an appeal from the judgment; but if made more than twenty days after the entry of judgment, how is the question to be presented for review? It is very clear, upon the authorities in this Court, that it can be presented only by means of a statement on appeal. The statement cannot be annexed to the judgment, because more than twenty days have elapsed since the entry of the judgment. (Sec. 338.) If it is not annexed to the order it has no place in the record and cannot be brought before the appellate Court.