Aronson v. Levison

VAN DYKE, J. This is a motion to dismiss the appeal. The appellant, plaintiff in the court below, brought an action to quiet title as to certain real estate in the city and county of San Francisco, and among the defendants in said action was Robert John Levison, a minor. On the application of the plaintiff in the court below to have a guardian ad litem appointed for said minor defendant, the court appointed George B. Merrill, an attorney in said city and county, as such guardian ad litem. After the hearing of the cause in the court below, before rendition of judgment, said Merrill, as guardian ad litem, applied to the court, upon notice to the plaintiff, to fix his compensation as such guardian ad litem of Robert J. Levison, minor. In accordance with said notice, the court, after hearing, the plaintiff being present, ordered that the plaintiff pay to said George B. Merrill the sum of two hundred dollars for his services as guardian ad litem. Thereafter the court entered judgment in favor of the plaintiff, quieting his title to the premises in question, and added to said judgment as part thereof the following, to wit: “And a guardian ad litem for said defendant Robert J. Levison, a minor, having been appointed in this action upon the application of said plaintiff, it is ordered that said plaintiff pay to said George B. Merrill, Esq., guardian ad litem as aforesaid, the sum of $200 for his services as guardian ad litem.” The plaintiff, as stated in his notice, ‘ ‘ appeals to the supreme court of the state of California from the part hereafter set forth of the judgment and decree heretofore duly given and made by said court in the above-entitled action, dated and filed May 15, 1905. . . . Said part of the judgment and decree so appealed from is in the following words and figures, to wit: [Then reciting the portion of the judgment already referred to, ordering the payment by the plaintiff to the guardian ad litem of the sum of $200 for his services as such guardian.] ” The respondent Merrill moves the court to dismiss the appeal on the ground that no appeal is provided by law from the part of the judgment as mentioned in the notice of appeal. *366 The portion of thg judgment ordering the payment to the guardian ad litem, appointed at the request of the plaintiff, is not, properly speaking, a part of the judgment on the merits of the case. This is practically admitted on the part of the appellant. The compensation of the guardian ad litem is in the nature of expenses or costs, and an incident to the action, and forms no part of the cause of action or defense thereto. The appellant seems to rely upon Harron v. Harron, 123 Cal. 508, [56 Pac. 334]. That case reviews and overrules the previous cases of Langan v. Langan, 83 Cal. 618, [23 Pac. 1084], and Fairbanks v. Lampkin, 99 Cal. 429, [34 Pac. 101]. In Harron v. Harron, as stated in the opinion, ‘‘The order appealed from is a special order made after final judgment. ’ ’ Such an order is made appealable by an express provision of statute (Code Civ. Proc., sec. 939), and the jurisdiction to entertain the appeal is not dependent upon the amount of money named in the order: In the Encyclopedia of Pleading and Practice (vol. 10, p. 685) it is said: “Under the statutes of some states the plaintiff, or the person who procured the appointment of the guardian ad litem, is required to pay the latter’s costs and expenses.” And in Smith v. Smith, 69 Ill. 308, the court say: “Under the Illinois statute the guardian ad litem is to be paid by the party on whose motion he was appointed, and to be taxed in the bill of costs. ’ ’ And in Snyder v. Fidelity Trust, 14 Ky. L. Rep. 615, it is held: “A guardian ad litem is to be allowed a reasonable fee to be paid by the plaintiff and taxed as costs. ’ ’ And in Carter v. Montgomery, 2 Tenn. Ch. 455, it is said: “The party beneficially interested is compelled to bring the infant into court, and must pay necessary expenses of the proceedings, including reasonable compensation to the guardian ad litem in the nature of taxable costs.” “Costs are those expenses incurred by parties in prosecuting or defending suits or proceedings in law or equity which are recognized and are allowed by law.” (5 Ency. Plead. & Prac. 106.) In this case no memorandum of such costs was required to be made by the guardian ad litem as in ordinary cases after entry of judgment, as the matter was fixed by the court before the entry of judgment and decree, and incorporated in said judgment, as already shown. The appeal not being from an order made after final judgment, but from a portion *367 of the judgment itself, and for costs or expenses of the action not amounting to three hundred dollars, this court has no jurisdiction of the appeal. The appeal must therefore be dismissed, and it is so ordered. McFarland, J., and Lorigan, J., concurred.