JOHN BURR, Appellant, v. MACLAY RANCHO WATER COMPANY, Respondent; R. H. HILLE et al., Interveners and Respondents, 26 Cal. App. 611

JAMES, J. Plaintiff herein appealed from an order made in the superior court denying his motion to tax the costs claimed by respondents as having been incurred by them as expense on an appeal taken to the supreme court from a judgment theretofore made in the action. That judgment on the appeal taken by respondents was by the supreme court modified. (Burr v. Maclay Rancho Water Co., 160 Cal. 268, [116 Pac. 715].) Subsequently a bill of costs was regularly filed in the superior court on behalf jointly of defendant and the interveners who were the appellants in the appeal mentioned.

Plaintiff made his objections thereto in due time in writing and moved the court to disallow all of the items of the cost-bill on two grounds: 1. That because of a stipulation entered into between the parties the entry of any costs would be premature; and, 2. That interveners were not entitled to costs, and it could not be ascertained from the joint statement as to what costs were properly chargeable as the expense incurred by defendant and what by the interveners.

It seems that after decision by the supreme court, reported in the volume and at the page above stated, the parties entered into a stipulation which, in part provided as follows: “During the currency of this agreement, all rights finally adjudged to either party by the judgment in the action of John Burr vs. the second party herein, and others, in the superior court of Los Angeles County, California, as modified and affirmed by the supreme court by its judgment, shall be held in abeyance.” As the terms of that agreement present themselves to us they seem to indicate the understanding of the parties to have been only that their rights, as affecting the matter of taking water from their several lands, should be held in abeyance because they had, temporarily at least, agreed upon conditions affecting the matter.

But giving the stipulation its greater effect, as claimed for it by appellant, it still falls short of showing any term which can properly be said to have limited respondents in their right to have the judgment as made in their favor perfected or completed by the insertion therein of costs allowed to them on appeal.

By reference to the decision rendered by the supreme court on the appeal of these respondents, as hereinabove cited, we find that there was a modification made of the judgment, and it cannot be said that such modification was not beneficial to interveners who were claiming under defendant in the action.

Rule XXIII, [160 Cal. liii, 119 Pac. xiii], as adopted by the supreme court, provides that “in all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to the costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal.” The bill of exceptions does not show what was provided by the remittitur issued by the clerk of the supreme court, although counsel for the parties in their briefs state it as a fact that the remittitur did direct that the costs of the appellants be recovered.

It will be presumed that the clerk followed the practice required of him and did insert the direction that the costs be recovered. The matter of determining what costs shall be allowed on appeal is largely one which is regulated by the appellate court in the absence-of statute. We are of the opinion that costs were properly allowed in this case and that the superior court did not err in refusing to tax the same upon the motion of the plaintiff. The order is affirmed. Shaw, J., concurred. Conrey, P. J., concurred in the judgment.