Barclay v. Culver

Headnote

Code of Civil Procedure, section 3253 — Bxti'a allowance—Basis of comput ing— Plaintiff in a difficult and extraordina/ry case who recovers and defeats a set-off is entitled to an allowance on both the claim established and the set-off defeated.

In a difficult and extraordinary case, where the defendant interposes to plaintiff’s claim as a defense and hy way of a set-off two promissory notes, and upon the trial judgment is rendered for plaintiff upon all the issues involved and for the full amount claimed, the plaintiff is entitled to an extra allowance, not only upon the sum recovered in the action, hut upon the basis of the defendant’s set-off determined against him.

Appeal from taxation of costs by clerk.

This action was brought by plaintiff, to whom the claim in suit had been assigned, to recover, of defendant the sum of $2,500 and interest. Defendant interposed as a defense and by way of set-off two notes, which with interest were of the aggregate value of $7,996. Upon the trial judgment was rendered for plaintiff upon all the issues involved, and for the full amount claimed by her with interest. The court granted an allowance of five per cent. Plaintiff, upon the taxation of costs by the clerk, claimed that the per centage allowed should be calculated upon the plaintiff’s recovery and upon the amounts pleaded as set off by defendant, as these constituted “ the value of the subject-matter involved.” The clerk refused to tax an allowance on the set-offs, and taxed it only on plaintiff’s claim. From such taxation this appeal was taken.