STOCKTON THEATRES INC v. Emil Palermo, Defendant and Respondent.*

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District Court of Appeal, Third District, California.

STOCKTON THEATRES, INC., a corporation, Plaintiff and Appellant, v. Emil PALERMO et al., Defendants, Emil Palermo, Defendant and Respondent.*

Civ. 9792.

Decided: March 09, 1960

Freed and Freed, San Francisco, for appellant. Smith and Zeller, Macomber & Aulik, Stockton, for respondents.

This is an appeal from an order allowing an item of cost on appeal as of January 20, 1959, and from an order denying appellant's motion to vacate said order and allow the item of cost on appeal as of December 17, 1954, with interest thereon from that date.

Appellant prevailed on an appeal from a judgment on the merits in this case and was allowed its costs on appeal. Stockton Theatres, Inc. v. Palermo, 121 Cal.App.2d 616, 632, 264 P.2d 74. The trial court fixed and allowed said costs on appeal on December 17, 1954. However, it disallowed the amount of the premium on a bond given to preserve attachments pending the appeal on the merits and an appeal was taken from that portion of the order with disallowed the amount of the premium on the surety bond. The Supreme Court ultimately reversed with directions to allow the premium on the bond as a cost on appeal. Stockton Theatres, Inc. v. Palermo, 51 Cal.2d 346, 352, 333 P.2d 10. This the trial court did on January 20, 1959. Appellant made a motion to vacate that order and to allow the bond premium as of December 17, 1954, the date on which the other costs on appeal were allowed. The motion was denied and this appeal followed.

The only questions presented are: (1) whether interest runs on an award of costs on appeal, and (2) if so, whether interest on the award made herein should run from the entry on January 20, 1959, of the order appealed from of from December 17, 1954, when the first order taxing costs on appeal had been made.

The first question was answered in In re Kennedy, 94 Cal. 22, 29 P. 412, wherein the Supreme Court held that a claimant for costs was entitled to legal interest on the amount of the award. A like ruling was made in Los Angeles Rock & Gravel Co. v. City of Los Angeles, 132 Cal.App. 262, 22 P.2d 541, and in Dalzell v. Kelly, 115 Cal.App.2d 60, 251 P.2d 343.

Interest on a judgment runs from the date of the entry thereof. Los Angeles Rock & Gravel Co. v. City of Los Angeles, supra, 132 Cal.App. at page 264, 22 P.2d at page 542; Columbia Sav. Bank v. Los Angeles, 137 Cal. 467, 471, 70 P. 308. The same rule pertains to interest in a judgment for costs on appeal. Dalzell v. Kelly, supra, 115 Cal.App.2d at page 62, 251 P.2d at page 344. As to the nature of such a judgment see Witkin, Calif.Proc., Vol. 3, page 2405. Appellant is entitled to interest on the bond premium from the date of its entry as a cost on appeal, January 20, 1959.

The orders are affirmed.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.