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District Court of Appeal, Second District, Division 3, California.


Civ. 13613.

Decided: April 09, 1943

Adolph B. Rosenfield, of Long Beach, Cal., in pro. per. D. A. Boone, of Long Beach, Cal., for defendants–respondents.

Rehearing denied. In his petition for rehearing appellant states that we have misconceived the nature of his objection to the affidavit verifying the memorandum of costs, and that his point in that respect is that the affidavit is not in the form authorized by the code and for that reason is, in legal effect, no verification at all. It is true, the affidavit departs slightly from the code in its arrangement of words. The code provision is for “a memorandum of the items of his costs and necessary disbursements in the action or proceeding, * * * verified by the oath of * * * stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.” Code Civ.Proc. § 1033. The affidavit of respondents' attorney here was “that to the best of his knowledge and belief the foregoing items of costs and disbursements in this action are correct, and that the said disbursements have been necessarily incurred.” In effect the code form is that “the disbursements have been necessarily incurred in this action” and the affidavit states that “the disbursements in this action have been necessarily incurred.” The difference is merely in the location of the words “in this action.” We cannot see that this difference causes any substantial difference in meaning, and for that reason stated in our former opinion, without discussion, the conclusion, to which we still adhere, that the affidavit conformed to the code.


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