David & Son v. Hurgren & Anderson

California Supreme Court Jun 13, 1899 No. S. F. No. 1063Published

Before: McFarland

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Holding. The court held that the defendants' counterclaim was properly pleaded under the Code of Civil Procedure, that the defendants were entitled to costs despite the small judgment amount, and that the motion for a new trial was properly denied due to the failure to timely file the notice of intention with the required fee.

Issues

Whether the defendants' counterclaim was properly pleaded under the Code of Civil Procedure.
Whether the defendants were entitled to costs when the judgment in their favor was less than three hundred dollars.
Whether the motion for a new trial was properly denied due to the failure to pay the filing fee within the statutory period.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the counterclaim was valid under subdivision 2 of said section.”

“In an action like the one at bar, unless the plaintiff is entitled to costs, the defendant recovers costs as a matter of course,”

“The notice, therefore, was not filed in time; the mere fact that the clerk received it on the 23d did not constitute a filing; it was not his duty to file it without the fee”

Synopsis

Action for Breach op Contract—Counterclaim.—An action for the breach of a contract to deliver leather is an action “arising upon contract,” and a counterclaim may be set up by the defendants therein for goods sold and delivered; and it is immaterial whether such counterclaim arises out of the transaction set forth in the complaint under subdivision 1 of section 438 of the Code of Civil Procedure, or is founded upon an Independent contract, under subdivision 2 of that section.

Id.—Allowance of Costs to Defendant.—Upon the failure of the plaintiff to recover in the action, costs are to he allowed as a matter of course to the defendant, notwithstanding the recovery, by the defendants of less than three hundred dollars upon their counterclaim.

Motion for New Trial—Dismissal—Statement—Review upon Appeal. The dismissal of a motion for a new trial is, in legal effect, a denial of the motion, and when the motion was made upon the minutes of the court, a statement must be prepared by the moving party, in order that the motion may be considered upon its merits upon appeal from tbe order, upon other grounds than those specified in the order dismissing the motion.

Id.—Notice of Intention—Receipt by Clerk—Nonpayment of Fees— Insufficient Filing.—A notice of intention to move for a new trial need not be filed by the clerk without the payment of the fees therefor in advance. The mere receipt of such a notice by the clerk on the last day for filing the same did not constitute a filing, where the clerk did not file it on account of nonpayment of the fees therefor; and a filing made three days thereafter, upon payment of such fees, though made as of the day of receipt of it by the clerk, at the request of the moving party, is too late, and cannot save the motion, and it is properly dismissed or denied.

McFARLAND, J. This is an action, to recover of the defendants seven hundred and two dollars for the nonfulfillment by them of a contract to deliver to plaintiffs a certain amount of collar leather. The defendants by their answer deny the. averments of the complaint, and set up as a counterclaim that plaintiffs are indebted to them for goods, wares, and merchandise sold, et cetera, in the sum of three hundred dollars. The jury returned a verdict for defendants in the sum of one dollar. Plaintiffs appeal from the judgment, from an order denying their motion for a new trial, and from an order denying their motion to strike out defendants’ cost bill.

1. The counterclaim of the respondents was one proper to he pleaded. The court below seemed to think'that the evidence showed that the counterclaim was one “arising out of the transaction set forth in the complaint,” and therefore belonged to the class of counterclaims mentioned in subdivision 1 of section 438 of the Code of Civil Procedure; the evidence, however, is not before us, and, assuming it to be founded upon an independent contract, yet, as plaintiff’s cause of action was clearly one “arising upon contract,” the counterclaim was valid under subdivision 2 of said section.

2. The principal point urged by appellants is based upon the court’s denial of their motion to strike out defendants’ cost bill. Assuming that this matter can be reviewed either upon the appeal from the denial of the motion to strike out, or from the general judgment, the ruling of the court below 'was correct. Plaintiff’s contention on this point is that respondents were not entitled to costs because the judgment in their favor was less than three hundred dollars; but this contention cannot be maintained. Section 1022 of the Code of Civil Procedure provides as follows: “Costs are allowed of course to the plaintiff upon a judgment in his favor in the following cases: . . . . 3. In an action for the recovery of money or damages when plaintiff recovers three hundred dollars or over”; and section 1024 provides that “costs must be allowed, of course, to the defendant upon a judgment in his favor in the actions mentioned in section 102.2.” If judgment had been merely for the defendants generally, the point here insisted upon would hardiy have been made, but the fact that they recovered a judgment in [50]their favor for one dollar does not change at all the specific provisions oi the code. This conclusion is clear upon principle, but the following authorities are directly in point. (Dows v. Glaspel, 4 N. Dak. 251; Ury v. Wilde, 3 N. Y. Supp. 791; 15 N. Y. Civ. Proc., 451.) In an action like the one at bar, unless the plaintiff is entitled to costs, the defendant recovers costs as a matter of course,

David & Son v. Hurgren & Anderson

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