LADY v. PALEN

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District Court of Appeal, Second District, Division 2, California.

LADY v. PALEN.

Civ. 10673.

Decided: February 18, 1936

Webster Hazlehurst and William Ellis Lady, of Los Angeles, in pro. per. Andrew J. Copp, Jr., of Los Angeles, for respondent.

Plaintiff appeals from an order striking out his cost bill after he obtained judgment in a libel action for the sum of $1 nominal and $200 punitive and exemplary damages.

This is the question presented for determination:

Is the plaintiff in a libel action, who recovers a judgment for less than $2,000, entitled to have taxed as items of cost:

(1) The sum of $100 to cover counsel fees under section 7 of Act 4317 of the state Legislature, volume 2, Deering's General Laws 1931, page 2161; and

(2) Other expenses incurred.

The first item is not properly taxable according to the decision in Rapfogel v. Klassen, 185 Cal. 524, 197 P. 795.

Neither is the second item legally taxable, in view of the decision in Jacobi v. Baur, 55 Cal. 554, 555, cited with approval in Rapfogel v. Klassen, supra, which holds that plaintiff is not entitled to costs in a libel action beyond those allowed by the general law, as provided in the Code of Civil Procedure.

In the instant case the judgment recovered was one that could have been rendered by an inferior court within the county, and hence costs were not allowed by the general law. Section 1032 (c), Code Civ.Proc., as added by St.1933, p. 1901, § 191.

The point as to the constitutionality of section 1032 (c), Code of Civil Procedure, raised by plaintiff for the first time in his reply brief will not be considered by us, since no reason or excuse has been offered for not having presented the point in his opening brief. Newcomb v. Title Guarantee & Trust Co., 131 Cal.App. 329, 21 P.(2d) 456, 22 P.(2d) 552.

The order appealed from is affirmed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.

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