Opinion
Appeal from the District Court, Sixth Judicial District, Sacramento County
COUNSEL:
J. H. Gass, for Appellants.
Hereford & Williams, for Respondents.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.
OPINION
CROCKER, Judge
This is an appeal from an order made by the Court below after judgment, directing the return of an execution issued on the judgment for the costs, and also from an order refusing to issue an execution on the same judgment for the costs. The respondent objects that this Court has no jurisdiction of the appeal, because the matter in dispute relates entirely to the costs. It is true that the matter in dispute relates to the costs, but as those costs exceed the sum of two hundred dollars, the case is within the jurisdiction of this Court. In the cases of Dumphy v. Guindon , 13 Cal. 28, and Votan v. Reese , 20 Cal. 89, referred to by the respondent, the matter in dispute related entirely to the subject matter of the action; and it was held that the costs were merely incidental to the action, and could not therefore be added to the demand sued for in order to give this Court jurisdiction. Those cases differ essentially from the present, as the alleged error in the action of the Court below affected not the subject matter of the action, but only the incidental matter of costs. The costs of an action may become a matter in dispute, as much so as the principal subject of the action; and when they amount to a sum sufficient to bring the case within the jurisdiction of this Court, its jurisdiction attaches. This objection of the respondent is therefore overruled.
The plaintiffs are entitled to an execution for the costs due on the judgment in accordance with the decree of the District Court, as modified, on appeal, by this Court. If they have included in their bills of costs items to which they are not legally entitled, the remedy of the defendants is by motion to retax the costs and to strike out the objectionable items, and the Court, under its general power over its own process and writs, could order a stay of proceedings on the execution until such motion could be heard and determined. But the mere fact that some of the items of costs are not legally chargeable against the defendants, affords no just ground for recalling the execution or denying another.
The orders of the Court below, appealed from, are therefore reversed, and the cause remanded.
The above decision relates to the Constitution as it existed before the recent amendments.--Reporter.