Schallert-Ganahl Lumber Co. v. Neal

Garoutte, J. This is a motion to dismiss an appeal, and the facts are as follows: Plaintiffs are material-men, and brought this action to foreclose certain liens for materials furnished defendant Neal. Judgment was recovered as prayed for in the complaint, and upon an appeal to this court, that judgment was affirmed in all respects, except as to an item of $43.50, and to that extent the trial court was directed to modify the judgment. Upon the filing of the remittitur in the lower [193]court, the judgment was modified in accordance with the directions therein, and the court also, by an order, allowed the attorneys for respondents a fee of one hundred dollars for services in defending the cause in this court, which amount was added to the judgment. It is from this order, and the judgment as modified, that defendant has now appealed, and the motion to dismiss such appeal is the matter under investigation, respondent insisting that in such case there is no appeal authorized by law. It seems quite clear that the court had the power to make an order allowing the successful party in this action a reasonable attorney’s fee for services rendered in this court. Section 1195 of the Code of Civil Procedure contains this provision: “The court [meaning the superior court] must also allow, as a part of the costs, the money paid for filing and recording the lien, and reasonable attorneys’ fees in the superior and supreme courts, such costs and attorneys’ fees to be allowed to each lien claimant whose lien is established,” etc. It needs but a cursory examination of the foregoing provision of the statute to determine that the attorneys’ fees referred to is not considered a part of the costs, but as a matter separate and distinct therefrom. Still, it bears some resemblance to costs, inasmuch as it is an incident to the judgment. This is the view of the matter taken by this court in Rapp v. Spring Valley Gold Co., 74 Cal. 532, and in McIntyre v. Trautner, 78 Cal. 449, and is undoubtedly the true principle.

It would seem from the foregoing views that rule 24 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 direction as to costs of appeal, the clerk will enter upon the record and insert in the remittitur a judgment that appellants recover the costs of appeal,”' has no application to the case at bar, for this is not a question of costs; and, in addition thereto, said section 1195 of the code places the matter in the hands of the [194]