Summary
In Lasky v. Davis it was considered that the order retaxing the costs was not a special order, made after final judgment, within the meaning of section three hundred and forty-three of the Practice Act, though made after the judgment, in point of time.
Summary of this case from Dooly v. NortonOpinion
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
The plaintiff recovered judgment, and filed his bill of costs. The defendant moved to retax the same by striking out several of the items. The Court made an order sustaining the motion. The judgment was entered December 27th, 1866. The plaintiff's bill of costs was filed on the same day. The notice of motion to retax fixed the 5th day of January, 1867, as the day the motion would be made. The order was finally entered on the 13th day of April, 1867. The plaintiff appealed from the order. The defendant moved to dismiss the appeal.
COUNSEL:
This order is appealable. The third subdivision of section three hundred and thirty-six of the Practice Act provides for an appeal from any special order made after judgment. This order was made a long time after the judgment was entered and perfected. The Court below, then, undertook to deprive the plaintiff of a part of the fruits of that judgment. From that action of the Court the plaintiff appeals, and only from that. The case of Levy v. Getleson , 27 Cal. 685, cited by the oppositecounsel in their brief, has no application to this case. There the order refusing to retax the costs was made a month before the judgment was entered. It was an order made intermediate--made during the progress of that suit, and before judgment was entered therein.
Charles Wittram, and Samuel F. Reynolds, for Appellant.
Grey & Brandon, for Respondent.
The order retaxing costs is not appealable, and can only be reached by an appeal from the judgment. (Levy v. Getleson , 27 Cal. 688.) It is not a " special order made after final judgment," (Practice Act, Sec. 336,) but is an order modifying the judgment; and how can this Court act upon the judgment unless by an appeal from it?
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
An order made on a motion to retax costs is not appealable. It is not an order made after final judgment within the meaning of section three hundred and forty-three of the Practice Act, even though it be made after the entry of judgment, for in legal effect the order, if the motion is granted, amounts to a modification or amendment of the judgment, or in other words becomes a part of it. If the motion is denied the error is none the less in the judgment, and can be reviewed only upon an appeal from the judgment. Costs are included in and constitute a part of the judgment, (Sec. 511,) and hence, though ascertained and adjudged by the Court after an entry of the judgment by the Clerk may have been made, yet the law considers such action of the Court as having preceded the final judgment. (Votan v. Reese , 20 Cal. 90; Levy v. Getleson , 27 Cal. 688; Stevenson v. Smith , 28 Cal. 105.)
The appeal is dismissed.