Crittenden v. S.F. Savings Union

SHAW, J. This is an appeal from an order striking from the files two memoranda of costs filed by the appellants herein in the superior court, embracing the alleged costs of certain former appeals to this- court. . In the action of Kate M. Bell and James L. Crittenden v. San Francisco Savings Union, the defendant San Francisco Savings Union, upon a cross-complaint, obtained judgment for the foreclosure and sale of the land which was the subject .of the suit, for the purpose of paying a large sum of money to the San Francisco Savings Union out of the proceeds thereof. Teresa Bell moved for a new trial. So also did Crittenden and the Oil Company. These motions were denied. Crittenden and the Oil Company appealed from the judgment. Teresa Bell also appealed from parts of the judgment, and both of said appeals were presented in one transcript num *203 bered L. A. 1913, filed in this court on May 17, 1906. Crittenden and the Oil Company also appealed from the order denying their motion for a new trial, and so also did Teresa Bell, the two appeals last mentioned being embodied in one transcript numbered L. A. 1927, filed in this court on June 18, 1906. In this court these appeals were all submitted together and the opinion disposing of them is reported in 153 Cal. 64, 77, [94 Pac. 225]. The conclusion of that opinion is as follows: “The order •denying both motions for a new trial is affirmed. The cause is remanded to the lower court, with directions to modify the judgment by deducting from the amount directed to be paid to the San Francisco Savings Union the sum of $16,679.85, and •as so modified, the judgment will stand affirmed.” Nothing was said in the opinion, or in the order of modification, concerning the costs of appeal. The appeals from the judgment, embraced in case No. 1913, were therefore governed by rule 23 of this court providing that “in all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as. to the costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal.” (144 Cal. xlix, [78 Pac. xi].) In the attempt to obey this rule, the clerk entered upon the record and inserted in the remittitur in each" case, 1927 as well as 1913, a judgment that the appellant recover costs of appeal. This, of course, is to be construed as including the plural and to give costs to all the appellants. In accordance with these two judgments of the supreme •court, the two appellants filed in the court below two memoranda of costs on appeal under section 1034 of the Code of Civil Procedure, one for $256.85 as the costs in case No. 1913, the other for $1168.30 as the costs in case No. 1927. The court, •on the respondents’ motion, struck both of said memoranda from the files and from this order the present appeal is taken. The orders denying a new trial were the only orders presented for review on the appeals embraced in case No. 1927, being the appeals from the order denying the motions for a new trial. That order having been affirmed, the appellants were not entitled to the costs of those appeals. The appeals from the judgment were embraced in No. 1913 and under the *204 rule aforesaid, upon the modification of the judgment, the appellants were entitled to the costs upon that appeal. Teresa. Bell filed no memorandum of costs in either case and her rights and the particulars of her appeal are not involved. The appeal of Crittenden and the Oil Company from the judgment was-taken more than sixty days after the rendition of the judgment, and, ■ hence, they could present for review upon that, appeal the judgment-roll alone. Under these circumstances the clerk had no authority or power to enter the judgment in favor of the appellant for costs in case No. 1927. No order having been made by this court, except that manifested by the aforesaid rule, his power was limited by the rule, which authorized him to enter the judgment for costs only in case No. 1913, the appeals from the-judgment alone. If this clerical error had been called to the attention of the court the unauthorized judgment would doubtless have been vacated. Now that it is called to our attention an order to that effect will be made. The order striking from the files the memoranda of costs on appeal No. 1927, from the order denying a new trial, while erroneous upon the record as it stood at that time, was not a legal injury to the appellants, for the judgment then appearing to have been given in that case was itself unauthorized. This error alone would be insufficient to justify a reversal of the order. The appellants were, however, entitled to the costs of appeal from the judgment and it was error to strike that memorandum of the costs in case No. 1913 from the files. The respondent upon the hearing in the court below filed an affidavit showing that, after the taking of the appeals and filing of the transcript in No. 1913, all the interest of Crittenden and the Oil Company in the lands involved in the action were sold in pursuance of the judgment appealed from, to Teresa Bell as administratrix of the estate of Thomas Bell, deceased, and that a deed was made to her in pursuance of said sale on April 8, 1907. At the latter date the appellants' brief had been filed but the appeal had not been called for hearing in the supreme court. The appellants, Crittenden and the Oil Company, filed no reply brief and did not appear in this court at the time of the hearing. Upon this it is contended by. the respondent here that those appellants have no right to-recover the costs in case No. 1913. The argument is that, as *205 they had no interest in the property at the time the appeals were argued or at the time the opinion was filed, the word “appellants” in the opinion and in the judgment and remittitur must be construed as applying only to the person or persons who at that time were interested in and were prosecuting the appeals, that is, to Teresa Bell, alone. They further say a transfer, by a party to an action, of his interest in the subject-matter thereof, carries to and vests in the transferrer all interest in the costs theretofore incurred, and hence that these appellants have no right to such costs. We do not think the manner in which the appeals were presented and the time at which the sale of the interest took place would justify the construction of the word “appellant” contended for by the respondents. As to the other point, it does not appear that there was any substitution of parties and there is nothing to show that the right to those costs was transferred to Teresa Bell, or that these appellants abandoned the appeal. They may have been content to submit it upon their opening brief. Where a transferee pending a suit permits it to be prosecuted in the name of the original parties, there is no rule of law that prevents those parties from recovering costs of suit. That is a matter of contract between the two with which the adverse party has no concern. Furthermore, the judgment of this court as to the costs in Case No. 1913 is still in force and it is binding upon the superior court and upon the parties to the action. This conclusion, of course, does not prevent the respondents, upon the going down of the remittitur upon this appeal, from further contesting the items of costs by showing, if they can, either that they were not incurred or that the items are too large. For the reasons given the order is reversed, with directions to the court below to strike from the files the memorandum of costs on the appeal in case No. 1927 from the order denying a new trial, and for further proceedings, if any are instituted, to retax the costs of the other appeal. The appellants herein shall recover the costs of .this appeal. Angellotti, J., Sloss, J., Henshaw, J., Lorigan, J., and Melvin, J., concurred.