Cotton v. Imperial Valley Union High School District

MONROE, J. pro tem* In the above-entitled action the cross-complainant, Cecil R. Cotton, doing business as Cotton Construction Company, sought to recover the balance claimed to be due to him under a contract involving the construction of a school building. At this time there are pending four different actions now on appeal in this court, as follows:

[880]No. 6905, in which Cotton Construction Company was plaintiff and Imperial Valley Union High School District et al., were defendants.

No. 6906, in which Cecil R. Cotton, d.b.a. Cotton Construction Company was plaintiff and Imperial Valley Union High School District et al., were defendants.

No. 6907, in which Cecil R. Cotton, d.b.a. Cotton Construction Company was plaintiff and Imperial Valley Union High School District et al., were defendants; and the action herein.

In each of these actions Mr. Cotton sought recovery for balance due him as contractor in connection with a construction of school buildings.

On May 26, 1959, an order was made in the superior court by which' these four actions were consolidated for trial. It was further ordered that Victor A. Gillespie, an attorney at law, was appointed referee to hear the evidence and to file his report and' findings of fact with the court. It was then provided,- “. : . that the fees of said Referee shall be paid one-half by each party, at the rate of $100.00 per day, payable semi-monthly, and that the same .shall be taxable as costs by the prevailing party in said action.”

Hearings were held accordingly. The referee rendered his report, in which he made findings that Mr. Cotton, doing business as Cotton Construction Company, was entitled to recover a substantial sum of money as balance due him upon the contract sued upon. Judgments were prepared for the signature of the court, in which provision was made for the recovery of costs in this case by the cross-complainant and in each of the other cases by Mr. Cotton as plaintiff. However, when the judgments were signed by the court on July 5, 1961, the court struck out the provision for recovery of costs and substituted the language, “each party to pay his own costs of suit incurred herein. ’ ’

Motions were made to correct or modify the judgments which were denied by the court without opinion. Motions for new trial were likewise denied. Thereupon, Mr. Cotton appealed from that portion of each judgment which denied “his ..right to costs in said action.” The sole question involved in each case is'whether the trial court erred in refusing a recovery of costs.