Hotchkiss v. Smith

Van Fleet, J.

This is an appeal from an order denying defendant’s motion, made under section 675 of the Code of Civil Procedure, to have satisfaction of judgment entered.

The only question involved is whether plaintiff is entitled on execution, as a part of her judgment, to be paid an item of sheriff’s fees and expenses for keeping property held under a writ of attachment, when such fees and expenses were not claimed by plaintiff in her memorandum of costs, and consequently not included in the judgment.

Section 1033 of the Code of Civil Procedure provides: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk and serve upon the adverse party, within five days after the verdict, a notice of the decision of the court or referee —or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made—a memorandum of the items of his costs and necessary disbursements in the action,” etc. And section 1035 of the Code of Civil Procedure provides that the costs shall be included in the judgment. The effect of these, provisions is that all costs and disbursements incurred in the action must, in order to be recovered by the prevailing party, be included in the memorandum of costs filed by the party. This includes all items of costs or *287 necessary disbursements incurred up to the time of the rendition of judgment, and a failure to claim such costs, or any item thereof, in the manner required by the statute is deemed to be a waiver1 of such costs, and precludes a recovery thereof. (Riddell v. Harrell, 71 Cal. 260, 261 ; Sellick v. De Carlow, 95 Cal. 644 ; Chapin v. Broder, 16 Cal. 403 .) The sheriff’s charge for keeper’s fees and expenses was a part of the necessary disbursements incurred by plaintiff in the action, and which she would have been entitled to recover against defendant; but, being costs and disbursements incurred before judgment, it was incumbent upon plaintiff to include and claim them in her cost bill, or they were waived. The statute makes no distinction between such disbursements and any other items of cost or expense incurred before judgment. The sheriff, judging from his return on the execution, seems to have proceeded upon the assumption that the keeper’s fees and expenses were a part of his “accruing costs,” under section 691 of the Code of Civil Procedure, and so chargeable against defendant without being included in the judgment; and such would seem to be the theory adopted by plaintiff, so far as his brief tends to enlighten us. But that theory is entirely erroneous. Such items are in no sense “ accruing costs,” as that term is used in the statute, the latter being such fees and expenses only as are incurred in executing the judgment.

The item for keeper’s fees constituting no part of the judgment against defendant, the sheriff was not authorized to charge or deduct the amount thereof against defendant in applying the proceeds of sale to the satisfaction of the judgment. It appears that, exclusive of that item, the property sold under the execution brought more than enough, when properly applied, to satisfy plaintiff’s judgment, including the amount of costs claimed in her cost bill, to which she was entitled, and the accruing costs; and, this being so, the defendant was entitled to have the proceeds so applied and to have the judgment'satisfied.

*288 The order is reversed and the court below directed to grant the motion.

Harrison, J., and Garoutte, J., concurred.