LANE v. PACIFIC GREYHOUND LINES

Reset A A Font size: Print

District Court of Appeal, First District, Division 1, California.

LANE et al. v. PACIFIC GREYHOUND LINES et al. (two cases).

Civ. 13116, 13298.

Decided: November 25, 1946

F. H. Dam, of Berkeley, for appellants. Cooley, Crowley & Supple Cooley, Crowley, Gaither & Dana, and T. H. De Lap, all of San Francisco, for respondents.

Plaintiffs appeal from three orders made after final judgment. Appeal No. 13,116 is from two orders made on October 25, 1945, by the trial court, one an order granting defendants' motion for leave to file a motion to tax costs on appeal and for relief from default, and the other an order denying plaintiffs' motion to strike from the files defendants' notice of motion to tax costs. Appeal No. 13,298 is from an order of the trial court made November 19, 1945, retaxing plaintiffs' costs on appeal by striking from the cost bill certain items numbered 7, 8 and 9. The last numbered appeal (13,298) was ordered consolidated with the other two appeals (13,116) by this court in order that the entire controversy over costs could be settled at one time instead of in two separate proceedings.

The present controversy is an aftermath of the case of Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21. By that opinion a judgment for defendants was reversed. By reason of such reversal plaintiffs became entitled to their costs on appeal. §§ 1033, 1034, Code Civ.Proc.; Rule 26, Rules on Appeal. The remittitur of the Supreme Court, allowing plaintiffs' costs on appeal was filed July 24, 1945. Plaintiffs served and filed their cost bill the very next day, July 25, 1945. Included within the cost bill in items 4 and 5 was $100 for the cost of printing briefs, the actual costs being in excess of that amount, but the statutes and Rules limiting the recovery of such expenditures to $100. Item 7 of the cost bill was for $50.84 for the cost of printing plaintiffs' petition for hearing in the Supreme Court; item 8 was for $66.73 for the cost of printing the opinions of the District Court of Appeal in the petition for hearing as required by the Rules; item 9 was for $31.37 for the cost of printing the answer to the petition for a rehearing in the Supreme Court.

Under §§ 1033 and 1034 of the Code of Civil Procedure a motion to tax costs must be filed within 5 days after the service and filing of the cost bill. Under these sections defendants' time to file the motion to tax expired July 30, 1945. No such motion was filed on or before that date, but on August 3, 1945, four days late, defendants filed their notice of motion to tax. On August 20, 1945, defendants filed a notice of motion, under § 473 of the Code of Civil Procedure, for permission to file a motion to tax costs and for relief from default. This motion was granted on October 25, 1945, and that is one of the orders from which plaintiffs appeal.

On August 29, 1945, plaintiffs filed a motion to strike the notice of motion filed by defendants on August 3, 1945. This motion was denied on October 25, 1945, and from such order of denial plaintiffs appeal. On November 5, 1945, according to the settled statement on appeal, the trial court, at the instance of defendants and with the consent of plaintiffs' attorneys, ordered the motion of August 3, 1945, withdrawn from the files. This would seem to render the appeal from the order denying plaintiffs' motion moot. However, the disposition made hereafter of the other two appeals makes it unnecessary to pass on that question.

On November 5, 1945, defendants' motion to tax costs came on for hearing. Various affidavits and documents were introduced and after argument the motion to tax costs was submitted. On the same day the court ordered items 7, 8 and 9 stricken from the cost bill. Plaintiffs appeal from that order, and that is appeal no. 13,298.

There is some doubt whether the two orders of October 25, 1945, are appealable orders. The plaintiffs contend that such orders were special orders made after final judgment, and are therefore appealable under § 963, subd. 2, of the Code of Civil Procedure. There can be no doubt that some orders relating to costs, at least where they finally dispose of the pending proceedings, are ‘special orders' after ‘final judgment’ within the meaning of this section. Passow & Sons v. United States, etc., Co., 56 Cal.App. 72, 204 P. 545; Markart v. Zeimer, 74 Cal.App. 152, 239 P. 856; Supera v. Moreland Sales Corp., 28 Cal.App.2d 517, 82 P.2d 963; Pratt v. Robert S. Odell & Co., 63 Cal.App.2d 78, 146 P.2d 504; Hand v. Carlson, 138 Cal.App. 202, 31 P.2d 1084; Hennessy v. Superior Court, 194 Cal. 368, 228 P. 862; Contra Costa County v. Cowell Portland C. Co., 126 Cal.App. 267, 14 P.2d 606; Kellogg v. Honcutt Gold M. Co., Ltd., 25 Cal.App.2d 109, 76 P.2d 551.

In spite of the broad language of § 963, however, it is well settled that all special orders made after final judgment are not appealable. To be appealable the special order must affect the judgment or bear some direct relation to it, and, moreover, it must dispose of the particular proceeding. See cases collected 2 Cal.Jur. p. 150, § 24. The law does not favor piecemeal dispositions of appeals. Where the special order does not dispose of the proceeding, and where it is in effect merely interlocutory, it should not be appealable but should be reviewed on the appeal from the order that finally disposes of the proceeding. In the present case the order granting defendants' motion to be permitted to file their motion to tax and for relief from default under § 473 of the Code of Civil Procedure, and the order denying plaintiffs' motion to strike, both contemplated that a further order on the motion to tax costs would be made. Obviously, if the court had denied defendants' motion to tax costs on its merits plaintiffs would not have been injured and their appeals from the two prior orders would have been unnecessary. The first two orders here appealed from were nothing but interlocutory orders that not only did not finally dispose of anything but also did not injure plaintiffs until the trial court passed on defendants' motion to tax costs and disallowed certain items. For these reasons it might well be held that the first two orders here appealed from were not appealable. However, we do not find it necessary to so hold because if not appealable they would be reviewable on the appeal from the order taxing costs.

The major contentions of plaintiffs are that the failure of defendants to file their motion to tax costs within the five days constituted an absolute waiver of any objections to the tax bill, that the court was without power to grant relief from default under § 473 of the Code of Civil Procedure, and that, in any event, the questioned items were recoverable. None of these contentions are sound.

Section 1034 of the Code of Civil Procedure provides in part: ‘Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, serve upon the adverse party and file with such clerk a memorandum of his costs, verified as prescribed by the preceding section. The party dissatisfied with the costs claimed may move to have the same taxed in the same manner and within a like time after service of a copy of the bill of costs, as prescribed by the preceding section. After such costs have been taxed, or the time for taxing the same has expired, execution may issue therefor as upon a judgment.’

Section 1033 provides in part: ‘A party dissatisfied with the costs claimed may, within five (5) days after the service of a copy of the bill of costs, file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge or justice thereof at chambers.’

Under these sections a failure to claim an item of costs, or the failure to object to an item of costs contemplated within the code sections, amounts to a waiver. See cases collected 7 Cal. Jur. p. 295, § 35. But the difficulty with plaintiffs' argument is that in the present case the cost bill on its face, in items 7, 8 and 9, claimed as costs items directly prohibited by law. Section 1034 read, at the time the cost bill was filed herein, that is, on July 25, 1945, as follows: ‘The prevailing party on appeal shall be entitled to his costs * * *. The party entitled to costs, or to whom costs are awarded, may recover all amounts actually paid out by him in connection with said appeal, and the preparation of the record for the appeal * * * the costs of printing briefs, and the production of additional evidence; provided, however, that no amount shall be allowed as costs of printing briefs in excess of one hundred dollars to any one party.’ (Italics added.)

Rule 26 of the Rules on Appeal, effective July 1, 1943 (Rule 53(b), in sub. c. provides in part: ‘The party to whom costs are awarded may recover only the following, when actually incurred: * * * (2) the cost of printing or other reproduction of briefs, not exceeding $100 to any one party.’

In items 4 and 5 of the cost bill the plaintiffs claimed their $100 allowed for the printing of briefs. Then in items 7, 8 and 9 plaintiffs claimed further allowances for printing documents which undoubtedly are ‘briefs' within the meaning of the code section and rule. This was definitely settled in the case of Haydel v. Morton, 18 Cal.App.2d 695, 696, 64 P.2d 954, 955, where it was held: ‘The defendant was allowed the statutory amount for printing his briefs on appeal. He claimed the additional amount of $73.28 as the cost of printing his reply to plaintiff's petition for a hearing by the Supreme Court. As provided by statute, an allowance for printing briefs is limited to the sum of $100. Code Civ.Proc., § 1034, * * *. Petitions for rehearings by the District Court of Appeal or for hearings by the Supreme Court, and replies thereto, are but statements of the propositions which are desired to be established, and are essentially briefs. Bell v. Germain, 12 Cal.App. 375, 107 P. 630; 9 Cor.Jur. 499. Such being the case, they come fairly within the meaning of the statute, and allowance therefor should be limited accordingly.’ Incidentally, the attorney for the plaintiffs in the present case was also one of the attorneys for the party who succeeded in convincing the appellate court in the Haydel case that such documents fell within the classification of briefs. He now argues that the Haydel case was decided before the new Rules on Appeal were adopted and that the new Rules make such allowances discretionary with the trial court. His contention is without merit. While the new Rules give the appellate courts wide discretionary powers as to the division of costs on appeal, the $100 limitation is just as clear, and applies to exactly the same documents, as did the old Rules and statutes. This is clearly pointed out by the draftsman of the Rules in his article in 17 So.Cal.L.Rev. 232, where, at p. 258, it is stated in reference to Rule 26: ‘Considerable debate took place over the $100 limit in § 1034 on the allowable award for the cost of briefs. It was urged that the limit be removed, or at least raised, or that an additional allowance be given to cover the cost of petitions for rehearing and hearing and answers thereto, but no sufficiently strong sentiment on the part of the Bar appeared to favor such changes.’ While the allowance of $100 for briefs, under present high printing costs, seems quite small, the allowance, if it is to be raised, must be done by the Judicial Council or the Legislature.

Thus, in this case the cost bill showed on its face that it listed certain items not recoverable and in direct violation of § 1034 of the Code of Civil Procedure and Rule 26. As to such items the rule is that failure to file the motion to tax costs within the five-day period does not constitute a waiver. The waiver only extends to those items included within § 1034 of the Code of Civil Procedure. Where the prevailing party lists items not included within that section or in direct violation of the section, he should not be permitted to claim a waiver in reliance on the section. That was the holding in Hansen v. Farmers A. Inter-Ins. Exch., 12 Cal.App.2d 493, 55 P.2d 900, and the rule of that case is sound. If that is so, then it was unnecessary for defendants to have moved for relief under § 473 of the Code of Civil Procedure.

Independently of whether there was or was not a waiver the court had power under § 473 to grant defendants relief from their default. Plaintiffs strenuously argue that § 473 has no application to a motion to tax costs for the reason that such a motion is not a pleading. Section 473 provides that a court may relieve a party ‘From a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.’

The plaintiffs argue that since a ‘pleading’ is required to accompany the application, and since a cost bill is merely a notice (Beilby v. Superior Court, 138 Cal. 51, 70 P. 1024), that a notice of motion to tax costs is merely a notice and not a pleading, and § 473 cannot apply. In the present case there was annexed to the motion for relief a copy of the proposed motion to tax and an affidavit in support of the motion for relief. Section 420 of the Code of Civil Procedure defines ‘pleadings' as ‘The formal allegations by the parties of their respective claims and defenses, for the judgment of the court.’ Certainly the present case falls within the letter and spirit of that section. To hold otherwise would unduly limit § 473 in direct violation of the obvious beneficent purposes of that section. This conclusion is supported by both reason and authority. It has been directly held in Soda v. Marriott, 130 Cal.App. 589, 20 P.2d 758; Potter v. City of Compton, 15 Cal.App.2d 238, 59 P.2d 540, and Kallmeyer v. Poore, 52 Cal.App.2d 142, 125 P.2d 924 (hearing denied), that the court has power and jurisdiction to grant relief under § 473 for the failure of the prevailing party to file his tax bill within the statutory time. If failure to file the tax bill within time falls within § 473, then, of course, failure to file the motion to tax costs likewise falls within the section. Plaintiffs recognize that these cases are contrary to their contentions but urge that these three cases are wrong. The cases they cite to establish a contrary principle are not in point, and do not stand for the proposition for which they are cited.

The plaintiffs also urge that since § 1034 of the Code of Civil Procedure provided, referring to costs, that after ‘The time for taxing the same has expired, execution may issue therefor as upon a judgment,’ that because of the use of the word ‘expired’ no revival is permissible under § 473. Whatever the rule may be as to items of costs falling within § 1034, the rule can have no application to items requested in direct violation of the statute.

The last point urged is that the facts shown in support of the request for relief were not sufficient. The point needs but little consideration. It is well settled that the granting or denying of relief under § 473 is a matter resting primarily within the discretion of the trial court (Soda v. Marriott, 130 Cal.App. 589, 20 P.2d 758; Berri v. Rogero, 168 Cal. 736, 145 P. 95; Dineen v. San Francisco, 38 Cal.App.2d 486, 101 P.2d 736), and that the section is to be liberally construed to accomplish justice. Haviland v. Southern California Edison Co., 172 Cal. 601, 158 P. 328; Manning v. Gavin, 14 Cal.2d 44, 92 P.2d 795. Here the affidavits showed that the inadvertent entry of a wrong date by an employee was the cause of the four-day delay. The record also shows that by letter within the five days counsel for defendants had questioned the items here involved, so that plaintiffs' counsel was not misled or prejudiced by the four-day delay. While it has been held that relief under § 473 would not be granted where it was merely based on the press of other business and forgetfulness on the part of the attorney, it has been held that the inadvertent entry of an erroneous date in the journal of proceedings kept by the defaulting attorney justifies an order relieving from default under the section. Haviland v. Southern California Edison Co., 172 Cal. 601, 158 P. 328; Manning v. Gavin, 14 Cal.2d 44, 92 P.2d 795; Hagenkamp v. Equitable L. Assur. Soc., 29 Cal.App. 713, 156 P. 520; Melde v. Reynolds, 129 Cal. 308, 61 P. 932. This case falls within the rule of those cases.

The three orders appealed from are affirmed.

PETERS, Presiding Justice.

WARD, J., and SCHOTTKY, Justice pro tem., concur.