UNION TRUST CO OF SAN DIEGO v. SUPERIOR COURT IN AND FOR SAN DIEGO COUNTY (1939)

The respondents seek to recover their costs incurred in resisting a petition for writ of mandate before the District Court of Appeal and before this court after hearing granted herein.

They filed a memorandum of costs, and have moved this court for its order allowing costs, directing the issuance of a writ of execution, directing the manner of collection, and, if necessary, amending our decision denying the writ so as to provide for the allowance and collection of costs.

The petition for mandate was granted by the District Court of Appeal, but, after hearing in this court, was denied on June 29, 1938, 11 Cal.2d 449, 81 P.2d 150, 118 A.L.R. 259. No petition for a rehearing in this court was filed, and the judgment became final on July 29 last, and is not now open to modification or attack. Notice of motion for allowance of costs was filed here and noticed for the Los Angeles calendar in September, at which time it was denied from the bench without presentation. Later, on representation of moving counsel that the motion had been called and acted upon during his absence from the courtroom, a rehearing was granted, and the motion was presented and argued on the Los Angeles December calendar, and later submitted.

Respondents contend that the costs they seek to recover must be allowed them by this court under the provisions of section 1027 of the Code of Civil Procedure, which provides that ‘When the decision of a court of inferior jurisdiction in a special proceeding is brought before a court of higher jurisdiction for a review, in any other way than by appeal, the same costs must be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case.’ The inapplicability of that section to the present situation is at once apparent, because in the mandate proceeding there was not, before this court for review, the decision of any court in a special proceeding. The effect of the granting of the petition for hearing here after decision and judgment in the District Court of Appeal was to entirely eliminate the prior decision of that court from the proceedings. The petition for writ of mandate was, therefore, before this court as an original application, and not for the purpose of reviewing the decision of the other court. Neither was there any decision of the superior court against which the judgment was directed.

Section 1095 of the Code of Civil Procedure provides that if an applicant for mandate is successful, he may recover costs. But the respondents were unsuccessful in this court, and it is now needless to speculate as to what costs might have been awarded the applicants, for not only were they unsuccessful in this court, but no provision for costs was made in the judgment denying the writ.

The motion is denied.

WASTE, Chief Justice.

We concur: SHENK, J.; CURTIS, J.; EDMONDS, J.; LANGDON, J.; SEAWELL, J.