Whitaker v. Haynes
California Supreme Court
Appeal from the District Court, Third Judicial District, City and County of San Francisco. Action on promissory note. The plaintiff had judgment for $1,386. He included in his memorandum of costs and disbursements $69 30, being five per cent, on the judgment. The defendant moved to strike it out, on the ground that it was not allowed by law.
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Appeal from the District Court, Third Judicial District, City and County of San Francisco. Action on promissory note. The plaintiff had judgment for $1,386. He included in his memorandum of costs and disbursements $69 30, being five per cent, on the judgment. The defendant moved to strike it out, on the ground that it was not allowed by law. The sixth section of the Act referred to in the opinion reads as follows: “The prevailing party shall be allowed five per cent, on the amount recovered, together with any sum by him so paid in a cause as costs and disbursements, to be included in the…
1Opinion of the Court
By the Court, Rhodes, J.:
The 6th section of the Act of February 9, 1866, entitled “ an Act to regulate fees in the city and county of San Francisco,” (Stats. 1865-6, p. 68,) provides that the prevailing party in certain actions “ shall be allowed five per cent, on the amount recovered,” but not to exceed $100 on one judgment. The question presented is, whether this provision was repealed by the Code. The Code, while it provides for the recovery of costs, does not declare of what items costs shall consist. If the percentage in question is to be regarded as costs, or as in the nature of costs,…
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