Rosenfield v. Vosper

SHAW, J. pro tem. On a former appeal by defendants in this action a judgment in favor of plaintiff was reversed and the defendants were awarded their costs on appeal, the sole ground of reversal being misconduct of the trial judge. (Rosenfield v. Vosper, (1941) 45 Cal.App.2d 365 [114 P.2d 29].) Thereafter defendants filed their verified memorandum of costs in the sum of $1,961.90, plaintiff made a motion to strike this memorandum and to tax costs, and the trial court made an order taxing and allowing costs in the sum of $1,932.30, from which this appeal is taken by plaintiff.

Plaintiff’s first contention is that the memorandum of costs was not properly verified because the verifying affidavit purported to be made on information and belief, and hence the memorandum affords no support for the judg[608]ment for costs and should have been stricken. Section 1034 of the Code of Civil Procedure provides that a memorandum of costs on appeal must be “verified as prescribed by the preceding section.” This doubtless refers to section 1033, which was the next preceding section when the language just quoted was first placed in section 1034, but the meaning would not be altered if the cross-reference were pointed at section 1033%, which has since intervened, for it contains the same provisions as section 1033 in regard to the subject of the cross-reference. Section 1033 authorizes a verification by the party’s attorney, “stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.” The verification here was so made, and, being authorized by the statute, must be accepted as sufficient, regardless of rules that affidavits made on information and belief are not sufficient for various other purposes. Being thus properly verified, the memorandum constitutes a prima facie showing sufficient to support the trial court’s decision in allowing all such items as appear, on their face, to be for proper and necessary costs on appeal. (7 Cal.Jur. 296, 297; Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., (1928) 205 Cal. 6, 10 [269 P. 525]; Haydel v. Morton, (1937) 18 Cal.App.2d 695 [64 P.2d 954].)

The first four items claimed in the cost bill were for costs in the trial court, including costs of the trial preceding the former appeal. The court allowed $119.50 on account of these costs. This was error, as respondents now concede. Such costs are not part of the costs on appeal; they are recoverable only upon entry of the judgment which finally disposes of an action in the trial court. (Monson v. Fischer, (1933) 219 Cal. 290 [26 P.2d 6] ; Atchison etc. Ry. Co. v Superior Court, (1939) 12 Cal.2d 549, 554 [86 P.2d 85].)