Sellick v. De Carlow

McFarland, J. This is an appeal from an order made after final judgment, denying defendants’ motion to strike out plaintiff’s cost bill and its amount froi/n the judgment. The action was for an injunction restraining defendants from diverting certain water, and for damages. Judgment was rendered for plaintiff, restraining defendants as prayed for, and for twenty dollars damages. The decision—that is, the findings — and the judgment were filed and entered March 20, 1891; and the cost bill in question was filed March 16th, —four days before the decision. Section 1033 of the Code of [645]Civil Procedure provides that a cost bill must be filed “ within five days after the verdict or notice of the decision of the court or referee”; and it seems quite clear that the cost bill was filed in this case before the time authorized by law, and that the court erred in denying the motion to strike it out.

The cost bill involved here amounts to only $113.85, but respondent does not make the point that this court has no jurisdiction of the appeal because the amount is less than $300. Indeed, respondent has no points or brief on file; and as this court has two or three times entertained similar appeals where the point of jurisdiction was not raised, we do not feel disposed, in this case, to raise that point, and definitely determine it on our own motion.

We deem it proper to say, however, for future guidance, that the question whether or not this court has jurisdiction of an appeal from a separate, independent order made after final judgment, involving money only, and in an amount less than three hundred dollars, must be considered as at least an open question. It is settled, no doubt, that on an appeal from a judgment in an action to recover money alone, the jurisdiction is determined by the ad damnum clause in the complaint. (Solomon v. Reese, 34 Cal. 28; Dashiell v. Slingerland, 60 Cal. 653.) But we do not at present recollect any case in which it has been definitely held that this court has jurisdiction of an appeal from an order made after final judgment, where there was no appeal from the judgment, and where the amount of money which the order put “ in controversy ” was less than the sum mentioned in the constitution; although, as before stated, such appeals have been entertained in a few instances where the question of jurisdiction was not raised. On the other hand, it was held in Department, in Langan v. Langan, 83 Cal. 618, that an appeal from an order allowing $150 to counsel, in a divorce suit, must be dismissed, because the amount , involved was “ too small to give the court jurisdiction ”; and in Oullahan v. Morrissey, 73 Cal. 297,