Smith v. Ross

This is an appeal from an order striking out plaintiff’s memorandum of costs. The sole question is: Was the memorandum served and filed in time?

The action was brought to recover possession of an automobile. It appears from the bill of exceptions that at the conclusion of the trial on November 30, 1920, “the court announced that in its opinion judgment should be for the plaintiff for the return of said property or the value thereof, found to be $750, and for costs of suit.” It further appears that findings were waived by defendant. Thereafter, but how soon does not appear, the clerk made an entry in the minute-book, under date of November 30, 1920, which, after reciting that the cause had been tried, argued, and submitted, and that the court had duly considered the evidence, states that the court “now renders its decision from the bench and orders that judgment be entered herein in favor of the plaintiff and against the defendant for the recovery of the possession of the automobile described in the complaint or $750 in lieu thereof, and for costs of suit. Findings waived in open court. Let judgment be entered accordingly.” The entry mentioned in the final sentence of this minute entry refers, of course, to an entry of the judgment in the judgment-book. The formal judgment, which was signed by the trial judge, was filed on December á, 1920, and was entered in the judgment-book on December 6, 1920. Plaintiff’s memorandum of costs, in due form, was served on December 21, 1920, and was filed December 22, 1920. Within five days thereafter defendants served and filed a notice of motion to strike the memorandum of costs

Respondents contend that appellant had notice of the “decision” when the court, in the presence of appellant’s counsel, orally announced from the bench “that in its opinion judgment should be for plaintiff.” Por appellant it is claimed that, because findings were duly waived in open court, no judgment was “rendered” and no “decision” was made -until the clerk had made his minute entry of the order directing that a judgment be entered in the judgment-book in favor of plaintiff; also that she had no notice of the “decision” until December 20, 1920, when, for the first time, her counsel learned of the entry of the minute order directing that judgment be entered in her favor. This information came to appellant’s counsel within five days prior to the time when her cost bill was served and filed. We think appellant’s contention must be sustained.

Section 1033 of the Code of Civil Procedure provides: “The party in whose favor the judgment is rendered, and who claims his costs, must deliver to the court, and serve upon the adverse party, within five days after the verdict, or notice of the decision of the court ... a memorandum of the items of his costs and necessary disbursements. . . . By the decision of the court ... is meant the signing and filing of the findings of fact and conclusions of law.” It will be noted that, according to the wording of this code section, it is only the party in whose favor “the judgment is rendered” who is entitled to costs; also that one so entitled, if the ease be tried without a jury, is not required to serve or file his cost bill until “after . . . notice of the decision of the court.”

[1] Where, as in the present case, findings are waived, the entry of the court’s decision in the clerk’s minutes constitutes the rendition of the judgment. Until the minute order is entered in the clerk’s regular minute-book—not in the courtroom clerk’s so-called “rough minutes”-—no judgment is “rendered.” (Crim v. Kessing, 89 Cal. 488 [ 23 Am. St. Rep. 491 , 26 Pac. 1076 ]; Brownell v. Superior

[2] Since section 1033 does not require the party in whose favor the judgment is rendered to serve or file his memorandum of costs until “within five days after . . . notice of the decision,” and since in this ease there was no “decision” until the clerk had made his minute entry, it follows that plaintiff was not required to serve and file her cost bill until she had received notice of that minute entry. [3] It does not follow that plaintiff’s counsel had notice of the “decision” simply because they were present when the court orally announced from the bench that “in its opinion judgment should be for the plaintiff.” No findings being required (they having'been waived), and the court having merely made an oral statement that it was its opinion that judgment should be for the plaintiff, it might have changed its opinion at any time before the clerk’s entry in the minute-book of the order directing judgment for plaintiff. Until such entry, the oral order or announcement from the bench was in the breast of the court and subject to change. (Brownell v. Superior Court, supra.)

It is possible that some days may have elapsed between the time when the court orally announced that it was of

Works, ¿T., and Craig, J., concurred.