Stockton Theatres, Inc. v. Palermo
Decision Date | 29 March 1960 |
Citation | 3 Cal.Rptr. 767,179 Cal.App.2d 323 |
Court | California Court of Appeals Court of Appeals |
Parties | STOCKTON THEATRES, INC., a corporation, Plaintiff and Respondent, v. Emil PALERMO, Defendant and Appellant. Civ. 9853. |
Smith & Zeller, Stockton, Forrest E. Macomber and Gordon J. Aulik, Stockton, for appellant.
Freed & Freed, San Francisco, for respondent.
This is an appeal from an order allowing interest on costs on appeal.
Respondent prevailed on an appeal from a judgment on the merits and was allowed its costs on appeal. Stockton Theatres, Inc. v. Palermo, 121 Cal.App.2d 616, 632, 264 P.2d 74. On December 17, 1954, the trial court taxed the costs, allowing respondent $1,097.37, but disallowing the amount of the premium paid for a surety bond given to preserve attachments pending the appeal. On December 23, 1954, appellant's attorney forwarded a check in the amount of $997.37 to respondent's attorney and requested a satisfaction of judgment. On December 27, 1954, respondent's attorney replied, as follows:
On December 28, 1954, appellant's attorney forwarded to respondent's attorney a certified check in the amount of $1,097.37. The check was returned, although the record does not disclose the reason, and it was not until May 14, 1959, that the costs on appeal in the amount of $1,097.37 were discharged. Interest thereon to the latter date was thereafter granted by the trial court, apparently on the theory that appellant's offer of payment on December 28, 1954, was not unconditional, as required by Section 1494 of the Civil Code, as the letter of transmittal stated:
'Since this now satisfies in full the judgment and all costs, I request that you send me a Satisfaction of Judgment by return mail.' (Emphasis added.)
The amount of $1,097.37 did not include 'all' of respondent's costs on appeal, as the trial court had disallowed the amount of the premium paid for the surety bond...
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