Summary
In Jacobi v. Baur the court says that the law "does not give plaintiff recovering judgment any costs beyond the amount allowed by general law as provided in the Code of Civil Procedure."
Summary of this case from Engel v. EhretOpinion
Department Two
Appeal from a judgment for the plaintiff and from an order denying a motion by defendant to strike out the cost bill of the plaintiff, in the Twenty-Second District Court, County of Sonoma. Temple, J.
COUNSEL:
The Act of March 23rd, 1872, concerning actions for libel and slander, is to be construed in connection with §§ 1022, 1025, of the Code of Civil Procedure. ( Code Civ. Proc. § 1858; People v. Southwell , 46 Cal. 141; Black v. Scott, 2 Brock. 325; State v. Rackley, 2 Blackf. (Ind.) 249; People v. Jackson , 30 Cal. 427; Merrill v. Gorham , 6 Cal. 41; Pearce v. Atwood , 13 Mass. 324.)
The act construed with reference to the Code means, that in case the plaintiff recovers over $ 300, he shall be allowed as costs, $ 100 to cover counsel fees, etc.
E. S. Lippett, and Barclay Henley, for Appellant.
George Pearce, for Respondents.
The act concerning actions for libel and slander of March 23rd, 1872, is special; it does not purport to be amendatory of any other act, and was approved after the Code of Civil Procedure.
Sections 1022 and 1025 of the Code of Civil Procedure are to be construed ascontinuing acts of date long anterior to the act in regard to libel and slander. ( Code Civ. Proc. § 5.)
An act must be read according to the ordinary and grammatical sense of the words, unless being so read it would be absurd or inconsistent with the declared intention of the Legislature, to be collected from the rest of the act. (Smith v. Bell, 10 M. and W. 378; Turner v. Sheffield Railway, id. 425; Hyde v. Johnson, 2 Bing. N.C. (Eng.) 776; E. C. L. R. 29; Broom's Legal Maxims, 36 and 78, 3rd edition.)
OPINION The Court:
This was an action to recover damages for slander. The plaintiff had a verdict for one dollar. He filed a memorandum of costs and disbursements amounting to $ 390.25, which defendant moved to strike out. This motion was denied by the Court and defendant excepted. Defendant appealed from the judgment, and the order denying his motion above mentioned.
We are of opinion that the Court erred in denying the motion. The seventh section of the Act of 23rd of March, 1872, entitled an act concerning actions for libel and slander, (Statutes of 1871-72, p. 533) does not give plaintiff recovering judgment any costs beyond the amount allowed by the general law as provided in the Code of Civil Procedure. The costs are left as under the general statute. By the general law, the plaintiff is not entitled to any costs at all, having recovered less than $ 300.
The judgment is affirmed, and the order denying defendant's motion to strike out is reversed.