Miller v. Superior Court

SHINN, P. J. The petition in this matter seeks review of an order allowing costs of trial against petitioner and prohibition to restrain enforcement of a judgment entered thereon.

The following facts are shown' by the petition. In an action by Arthur Washburn against petitioner Miller verdict [537]and judgment were in favor of the plaintiff for $5,000 compensatory damages and $2,500 punitive damages. Plaintiff served and filed a cost bill and petitioner herein served and filed his motion to tax costs. He also moved for a new trial and upon a hearing thereof, the court made an order as follows: “Motion for a new trial granted on the ground of insufficiency of the evidence to justify the verdict, unless on or before Tuesday, September 13, 1955, Plaintiff shall file in this Court (Department 18) his consent in writing that the judgment be reduced to $3,000.00 compensatory damages. If said consent is so filed the motion for new trial is denied. ’ ’ In due time plaintiff served and filed a document reading as follows: “Plaintiff hereby consents to the amendment of the verdict and judgment herein so as to reduce the amount of the award to $3,000 plus costs, and waives and remits all sums in excess of $3,000 plus costs.” In another department of the court plaintiff moved for entry of costs in the sum of $543.50 to which the petitioner objected. It is alleged in the petition that judgment for costs was entered in that amount, and unless restrained from so doing the court will issue execution upon said judgment; petitioner has appealed from the cost judgment and has filed an undertaking to stay execution. According to petitioner, there is no valid judgment by reason of the fact that a new trial was granted; prosecution of the appeal from the cost judgment would be expensive and would result in much inconvenience and delay.

Petitioner contends that the order made on motion for new trial granted a new trial for the reason that plaintiff did not comply with the condition of the order. Therefore, he claims the judgment that was entered on the verdict was vacated, and since there was no judgment in force thereafter, the court was without power to award costs to the plaintiff. He says that the judgment when reduced to $3,000 was within the jurisdiction of the municipal court (Code Civ. Proe., § 89, subd. 1) and hence would not carry costs as a matter of right (Code Civ. Proe., § 1032, subd. (d)). He says further that the remission by the plaintiff did not meet the condition of the court’s order since it remitted “all sums in excess of $3,000 plus costs”; he could not reduce his judgment to $3,000 and have costs in addition. We cannot agree with petitioner’s contentions.