O'Hare v. Peacock Dairies, Inc.

MARKS, J. This is a motion to recall the remittitur issued by the clerk of this court on July 14, 1938, and to strike therefrom the words, “Appellant to recover costs on appeal. ’ ’

Plaintiffs instituted an action in the Superior Court of Kern County to recover damages for breach of contract. They were awarded judgment in the sum of $10,158.24. Defendant appealed from the entire judgment and presented a complete record on appeal bearing our Civil Number 1843. We will refer to this case as defendant’s appeal. Plaintiffs appealed from the portion of the judgment which fixed their damages at $10,158.24. This appeal was also presented on its complete record bearing our Civil Number 1842. We will refer to this case as plaintiffs’ appeal.

As the entire judgment was before us in defendant’s appeal, the question of the amount of damages awárded could [563]be considered there. For our own convenience, and to save needless repetition, we considered all the questions presented on both appeals in defendant’s appeal (O’Hare v. Peacock Dairies, Inc., 26 Cal. App. (2d) 345 [79 Pac. (2d) 433]), and filed a memorandum opinion in plaintiffs’ appeal. (O’Hare v. Peacock Dairies, Inc., 26 Cal. App. (2d) 753 [79 Pac. (2d) 443].) The orders made in the two appeals are identical and are as follows:

“The judgment is reversed and the cause is remanded for new trial solely on the issue of the amount of damages, with direction to the trial court to retry the issue of the amount of damages only; to amend its finding of fact and conclusions of law in accordance with the evidence so taken and the views herein expressed, and to render judgment in favor of plaintiffs for the amount of damages so found upon a determination of that issue.”

As the judgment had been reversed in both appeals, the clerk in issuing the remittiturs awarded costs to the appellant in the one case, and to the appellants in the other case on the theory that the reversal made them the “prevailing party” under the provisions of section 1034 of the Code of Civil Procedure and rule XXIII, Rules for the Supreme Court and District Courts of Appeal.

Plaintiffs contend that as they were really the victors in both appeals they should be considered the “prevailing party” in both and that the costs on appeal should not be taxed against them in either appeal. This argument overlooks the fact that the appeals were separate and distinct, were on separate records, and that in each appeal the judgment was reversed.