Whitaker v. Title Ins. & Trust Co.

This is an application for a writ of supersedeas.

The action was one for damages, and plaintiff obtained judgment in the court below. The judgment, so far as material, was as follows, viz.: “That said plaintiff Prank Whitaker have and recover from said Title Insurance and Trust Company, a corporation, the sum of $6,391 with interest thereon from the twentieth day of September, 1912, and $375.75 with interest thereon from October 4, 1913, together with his costs and disbursements incurred in this action, amounting to the sum of 72 and 75-100 dqllars.” The judgment was thus “one directing the payment of money,” and was governed by the provisions of section 942 of the Code of Civil Procedure, in so far as the requirements essential to a. stay of execution pending appeal are concerned. An appeal was taken to this court from said judgment, and the same is still pending herein. Ah undertaking for the purpose of staying execution pending appeal, in the form prescribed by said section, was filed in the lower court. This bond was given for an amount exactly double the aggregate amount of principal with interest thereon to the date of entry of the judgment, and did not include the $72.75 cost. Notwithstanding the giving of this undertaking, the plaintiff is proceeding to enforce the judgment by execution, and the superior court ■holds that the bond is ineffective as a stay- bond, because not sufficient in amount. Hence this application.

Section 942 of the Code of Civil Procedure provides, so far as material here, as follows: “If the appeal be from a judgment . . . directing the payment of money, it does not stay" the execution of the judgment or order unless a written under

This precise question apparently has never before been brought to the consideration of this court. It is, of course, well settléd that the right to recover costs exists solely by virtue of statutory provisions, and that when allowed by statute they are allowed solely as an incident of the judgment given upon the issues in the action. (See Begbie v. Begbie, 128 Cal. 154 , [ 49 L. R. A. 141 , 60 Pac. 667 ].) Our statutes provide for the allowance of costs by the trial court to the prevailing party in practically every kind of action and proceeding, in most cases as of course, and in some matters in the discretion of the court. (Code Civ. Proc., secs. 1022, 1025.) They are “allowed of course” in an action for the recovery of money or damages “when plaintiff recovers three hundred dollars or over.” (Code Civ. Proc., subd. 3, sec. 1022.) They constitute no part of a judgment at the moment of its rendition, accruing only upon verified claim therefor, specifying items, served and filed within a specified time after verdict or notice of decision, and the fixing by the court of the amount thereof if the claim be disputed by the adverse party within a specified time. (Code Civ. Proc., sec. 1033.) The clerk is required to include the costs in the judgment entered by him if the same have been taxed or ascertained, and it is further provided that “he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blank left in the judgment for that purpose.” (Code Civ. Proc., sec. 1035.)

If by the terms of section 942 of the Code of Civil Procedure, a stay bond is required on appeals from a judgment

While the case referred to does not decide the precise question we have here, we think it fairly points the way to the proper construction of the provision of section 942 of the Code of Civil Procedure, which is here involved. The statutory provisions material to the question of a stay of proceedings pending an appeal from the judgments and orders of superior courts in all other cases than the one covered by section 942 of the Code of Civil Procedure, show that no security was contemplated in the matter of the costs incidental to the judgment. No good reason appears why any exception should be made to this general rule in the one case of judgments or orders covered by section 942 of the Code of Civil Procedure, viz., judgments or orders directing the payment of money. In such a case the costs are just as much a mere incident of the judgment for the money decreed to be due upon the claim of

Under these circumstances it seems to us that the words, “in double the amount named in the judgment,” must be taken as referring to the amount adjudged to be due the prevailing party upon the claim involved in the action and for which recovery is awarded, and as not including the incidental recovery on account of the costs of the action awarded only upon claim made and ascertainment of amount had subsequent to the giving of the judgment.

It is worthy of note, in this connection, that so far as material here section 942 of the Code of Civil Procedure, and section 978 of the Code of Civil Procedure, relative to undertakings on appeal and to stay proceedings on appeals from justices’ and police courts were enacted in 1872 as parts of our original code in the same form in which they now exist, and that section 978 expressly required as an essential to a stay pending an appeal, security not only for the judgment proper but also for all costs. It was expressly provided therein that if the judgment be one for money, the bond must be -‘in a sum equal to twice the amount of judgment, including costs,” and when for the recovery of property, in “twice the value of the property, including costs”; also that the bond must be conditioned, when the judgment was for money “that the appellant will pay the amount of the judgment appealed from, and all costs, and when for property, “the judgment and costs. ” As to actions to foreclose a lien on specific personal property, the condition was to be that the appellant

It follows from what has been said that the undertaking filed was sufficient to stay proceedings under the judgment pending the appeal.

Let a writ of supersedeas issue as prayed.

Sloss, J., Melvin, J., Shaw, J., Wilbur, J., Richards, J., pro tem., and Lorigan, J., concurred.