People v. One 1937 Plymouth 6 4-Door Sedan

STURTEVANT, J. This is an application to recall and modify the remittitur heretofore issued in the above-entitled action. The judgment rendered by the trial court was as follows: “Ordered, adjudged and decreed that plaintiff take nothing by its said petition, complaint, and notice of seizure, and that the automobile described as one 1937 Plymouth 6 4-Door Sedan Engine No. P4-211565, be returned to defendants and interveners Grace Barry, and Anglo California National Bank of San Francisco, a National Banking Association.” The judgment ordered by this court provided as follows : "That portion of the judgment denying a forfeiture and ordering a return of the automobile is affirmed. That portion allowing costs to interveners and claimants is reversed.” (37 Cal. App. (2d) 65, 74 [98 Pac. (2d) 750].) In preparing the remittitur the clerk inserted therein, “Whereupon it is ordered, adjudged and decreed by the court that that portion of the judgment of the Superior Court in and for the City and County of San Francisco denying a forfeiture and ordering a return of the automobile in the above entitled cause be and the same is hereby affirmed. That portion allowing costs to interveners and claimants is reversed. The appellant to recover costs of appeal.” The interveners and claimants contend that the last sentence contained in the remittitur was inserted through the mistake of the clerk and that it should be stricken out. The plaintiff contends that the error, if any, was the error of the court and that it has lost jurisdiction. We think the latter contention is without merit. Except as hereinafter specifically noted the judgment of the trial court was affirmed in toto. It is statutory that the prevailing party on appeal shall be entitled to his costs. (C. C. P., sec. 1034.) However the losing party was the plaintiff, the People of the State of California. As there is no statute providing that the State of California will pay costs in such a proceeding, and as the State of California is [40]not bound by general words contained in the statutes, no authority existed to award costs against the state. (People v. One Plymouth Sedan, 21 Cal. App. (2d) 715, 717 [69 Pac. (2d) 1011].) The statute provides that an order for costs may be made by the trial court. (C. C. P., sec. 1032.) Such orders are not correctly speaking a part of the judgment but are merely incidental thereto. (Cain v. French, 29 Cal. App. 725, 727 [156 Pac. 518]; Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210 [42 N. W. 232, 17 Am. St. Rep. 131].) There is no statute that authorizes costs to be awarded against the prevailing party. No different rule obtains when the state is a party. (Commonwealth of Kentucky v. H. I. Todd, etc., 9 Bush (Ky.), 708.)