Votan v. Reese

Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring. This action was brought to recover damages for injuries to the . property of the plaintiff, occasioned by a ditch constructed by the defendants, and to obtain a judgment of the Court declaring the ditch a nuisance, and directing the defendants to fill it up. The jury gave a verdict for the plaintiff, and assessed his damages at one hundred dollars, but added a special finding that the ditch was not a nuisance. Upon the verdict, judgment was ^entered for the plaintiff for one hundred dollars, and' costs taxed at one hundred and seventy-four dollars and forty cents. To so much of the judgment as awards costs to the plaintiff, the defendants objected, and moved for judgment for costs in their favor; but the Court overruled the objection and motion, and hence the present appeal. The position of the appellants is, that the jury having found that the ditch was not a nuisance, the case is to be regarded, so far as the costs are concerned, as a simple action for damages for injuries to the property of the plaintiff. If this position be correct, no costs were taxable to either party under the statute, the damages recovered being less than two hundred dollars. (Pr. Act, sec. 498.) And further, we have no appellate jurisdiction to review the ruling of the Court below. . In actions simply for money or damages, where no question as to the legality of a tax, toll, impost or municipal fine is involved, this Court has appellate jurisdiction only in cases where the matter in dispute exceeds two hundred dollars. Costs are merely incidental to the action. They constitute no part of the matter in dispute. To enable us, therefore, to review the ruling of the Court below upon the subject of costs, in an action of this character, where the defendant appeals, the judgment, independent of costs, must exceed two hundred dollars. Where the plaintiff is appellant in such action, if the verdict be for the defend 91 ant, it will be sufficient if the amount claimed by the complaint exceeds that sum; or if the verdict is for the plaintiff, if the difference between its amount and that claimed exceeds that sum. (Gillespie v. Benson, 18 Cal. 411.) When we have obtained jurisdiction of the case by the appeal from the judgment, we can proceed to correct the' costs which are inserted in the judgment, as to any item which is improperly charged. We can interfere in no other-way. Appeal dismissed.