White v. White

BELCHER, C. The transcript in this case presents three appeals, based upon three separate bills of exceptions: the first from an order striking out certain items in two of defendant’s bills of costs, the second from an order denying defendant’s application for a further allowance for costs and expenses, and the third from an order allowing the plaintiff to mortgage his property. Each of the orders appealed from was made on the twenty-fourth day of June, 1891. In order that there may be a proper understanding of the questions involved in these appeals, a brief history of the case should be stated. The plaintiff commenced the action in December, 1885, to obtain a'divorce from the defendant. The defendant answered, denying the charges made against her, and also filed a cross-complaint, in which she stated facts entitling her to a divorce, and prayed that she be granted a divorce from the plaintiff. While the case was pending in the trial court, on application of defendant, an order was made requiring the plaintiff to pay to her sums of money aggregating $3,850, for costs and expenses, alimony and counsel fees; the item for costs and expenses being $250. From this order an appeal was taken by the plaintiff to this court, and the order was affirmed in July, 1887: White v. White, 73 Cal. 105, 14 Pac. 393. In October and November, 1887, two other orders were made, requiring the plaintiff to pay to defendant the further sums of $250 and $518, for costs and expenses. The case was tried in April, 1888, and after it was submitted for decision the court made another order, requiring the plaintiff to pay to defendant the sum of $1,263.65 for additional costs and expenses. On May 15, 1889, judgment was entered denying a divorce to the plaintiff and granting one to the defendant. From this judgment the plaintiff appealed to this court, and [17]the judgment was affirmed in October, 1890: 86 Cal. 219, 24 Pac. 996. The plaintiff also appealed from an order denying his motion for a new trial of the case, and that appeal was subsequently dismissed. There were two other appeals from orders relating to attorneys’ fees, and the decisions are reported in 86 Cal., at pages 212 and 216, 24 Pac., at pages 1030 and 1031. Afterward, in December, 1890, an order was made requiring the plaintiff to pay to defendant the sum of $7,500 for attorneys’ fees. The plaintiff appealed from this order, and his appeal was dismissed on March 24, 1891: 88 Cal. 429, 26 Pac. 236.

The facts leading up to the present appeals are as follows:

1. Upon the dismissal of plaintiff’s appeal from the order denying his motion for a new trial, and within the time allowed by law, defendant served and filed her bill of costs on the appeal, which contained the following item: “Printing respondent’s points and authorities, filed February 28, 1891, $125.00.” And again, upon the dismissal of the appeal from the order of December, 1890, and in proper time, defendant served and filed another bill of costs, containing this item: “Printing of defendant’s brief on her motion to dismiss, March 5, 1891.” Subsequently the plaintiff moved that each of these items be stricken out of the cost bills upon the ground that it “is not a proper item of the same, and that the amount is unreasonable, and excessive.” The court granted the motion, and hence the first appeal.