Wilson v. Sharp

• Court: California Court of Appeals
• Writing for the Court: LILLIE; WOOD, P. J., and FOURT
• Citation: Wilson v. Sharp, 175 Cal.App.2d 691, 346 P.2d 910 (Cal. App. 1959)
• Decision Date: 01 December 1959
• Parties: H. J. WILSON, Plaintiff and Appellant, v. William G. SHARP et al., Defendants. William G. Sharp, Respondent. Civ. 24116.

Page 910

346 P.2d 910

175 Cal.App.2d 691

H. J. WILSON, Plaintiff and Appellant, v. William G. SHARP et al., Defendants William G. Sharp, Respondent.

Civ. 24116.

District Court of Appeal, Second District, Division 1, California.

Dec. 1, 1959.

John J. Guerin, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Los Angeles, for respondent.

LILLIE, Justice.

In the main action filed by appellant Wilson against respondent Sharp, Clifford N. Amsden, Joseph M. Lowery and the County of Los Angeles, judgment in favor of defendants was entered by the trial court on October 24, 1957. It was affirmed on appeal (Wilson v. Sharp, 166 Cal.App.2d 766, 334 P.2d 25), and the remittitur of this court which ordered 'judgment is affirmed. Respondents to recover costs on appeal,' was filed on March 9, 1959. Pursuant thereto, all defendants represented by the County Counsel filed with the court below their memorandum of costs on appeal claiming a total of $318,21-$150.20 for a Reporter's Transcript and $168.01 for the printing of 'Respondents' Brief.' Plaintiff moved to tax costs and requested the trial court to strike the sum of $150.20 as an expenditure for a copy of the Reporter's Transcript for defendants' personal use, and to apportion the $168,01 item for Respondents' Brief by segregating and striking from that amount the portion claimed on behalf of defendant Sharp. The court below struck the $150.20 expenditure, but denied that portion of the motion seeking apportionment of the $168.01 item by ordering costs taxed in that amount. It is from this order plaintiff has appealed.

The principal action, one of a long line of suits filed by appellant as a taxpayer in connection with the conduct of the Los Angeles County Civil Service Commission relative to examinations for, and appointments to, positions in the office of the County Clerk, was brought for declaratory relief and to recover public monies allegedly paid without authority law. He sought recovery from Sharp for salary paid to him as Executive Assistant County Clerk, and imposition of liability on defendants Amsden as Secretary and Chief Examiner of the Los Angeles County Civil Service Commission, Joseph M. Lowery as Auditor of the County of Los Angeles, and the County of Los Angeles, for causing to be paid and paying to Sharp his salary from public funds.

From the inception of the case, Sharp and the other defendants have at all times been represented as a group by the County Counsel who appeared for them--in the trial on the merits before the lower court, on the appeal to this court from the lower court's judgment, on appellant's petition for hearing in the Supreme Court, in the lower court in presenting their memorandum of costs, and now on this appeal from the order taxing costs.

In support of his basic contention that the lower court erred in failing to segregate and strike from the $168.01 item expended for the printing of Respondents' Brief on the appeal from the trial court's judgment on the merits that portion claimed by the County Counsel on behalf of respondent Sharp, appellant in effect argues that although this court on that appeal entered judgment ordering that all respondents recover their costs thereon, 'the County Counsel had no lawful right to act as attorney for respondent Sharp in this action and has no lawful right to claim costs expended by respondent Sharp' because he was not lawfully appointed to the position of Chief Deputy County Clerk, and even if his appointment was valid, he is only an employee of the County Clerk, not an officer entitled to the legal representation of the County Counsel; and in any event, Sharp represented only himself in the main action which constituted a matter personal to him and not relative to the duties of any office, for which reason an apportionment should have been made separating respondent Sharp's costs on the appeal from those of respondent County officers appearing and defending in their official capacity--all of which matters should and could have been raised on the previous appeal on the merits and decided by this court before its entry of judgment for costs in favor of respondents.

It has long been settled that an appellate court by its judgment determines the final award of costs on appeal (who shall recover the same), and the trial court determines the specific judgment (what items of costs the entitled party may recover under the general award) (Gray v. Gray, 11 Cal. 341; Bell v. Superior Court, 150 Cal. 31, 87 P. 1031). Although under both the Court Rules (Rules on Appeal, Rule 26(a)) and the Code of Civil Procedure (Section 1034), the prevailing party on appeal is entitled to his costs and the appellate court awards them as of course; this court also may, in its discretion, make any award or apportionment of costs it deems proper in the interests of justice (Rules on Appeal, Rule 26(a); Paine v. Bank of Ceres, 60 Cal.App.2d 621, 141 P.2d 219). Inasmuch as appellant claims that the County Counsel not only has no right to represent respondent Sharp for the recovery of his costs on appeal, but had no right to represent him 'in this action' upon which this court awarded costs and entered judgment therefor, both of which contentions he predicates upon the invalidity of Sharp's appointment and the unofficial nature of his appearance in the main case, thereby justifying an apportionment of respondents' costs to eliminate the County Counsel's claim thereto on his behalf; and inasmuch as he could and should have called the issue of the propriety of the County Counsel's representation of Sharp to the attention of this court on the prior appeal on the merits before it entered judgment ordering recovery of costs for all respondents, we find no merit in appeallant's present attempt to relitigate matters already decided and litigate issues which could have been previously decided by this court had they been timely and properly raised. The appellate court is now without jurisdiction to decide the basic issue of the County Counsel's right to represent Sharp on the previous appeal which resulted in the judgment for his costs, for after it made the award and its remittitur was lodged in the court below its jurisdiction over the action ceased and revested in the trial court. Nuckolls v. Bank of California, 10 Cal.2d 266, 74 P.2d 264, 114 A.L.R. 708: Riley v. Superior Court, 49 Cal.2d 305, 316 P.2d 956; Horan v. Varian, 207 Cal. 7, 276 P. 1002. In point, although involving a motion to recall the remittitur is the case of Paine v. Bank of Ceres, 60 Cal.App.2d 621, at page 623, 141 P.2d 219, at page 221, in which the court stated: 'Thus, an allowance of costs to the prevailing party on appeal is within the discretion--i. e., the jurisdiction--of the appellate court. A remittitur will be recalled only where the judgment of the appellate court has been secured by fraud or imposition, or where the court has been led astray so as to decide the case under a misapprehension of the true facts, or where the court has no jurisdiction to act (Citations). Normally, as already pointed out, the prevailing party is entitled to his costs on appeal as (a matter) of course. If the losing party wants to urge that the appellate court should exercise its inherent power and deny costs to the prevailing party in the interests of justice he should normally urge such point before the appellate court has lost jurisdiction by the issuance of the remittitur. He should not be permitted to wait and see if the court exercises such power on its own motion and, if it does not, secure, in effect, a second hearing on a motion to recall the remittitur.'

Existent in our law is the rule that there is a presumption that an attorney has authority to appear for whom he professes to act (Vojnich v....