1.

In an action for the recovery of real property.

2.

In an action to recover the possession of personal property.

4.

In a special proceeding.

5. In an action which involves the title or possession of real estate, or the

legality of any tax, impost, assessment, toll, or municipal fine. [C. L. § 3684*.

Cal. C. Civ. P. ? 1022.

Costs on appeal in special proceedings,

3349.

SPECIAL PROCEEDINGS. Where a writ of certiorari is directed to a justice of the peace, who is the only party to the proceedings in the district court, it is error upon setting aside the judgment of the justice, to enter judgment for costs against him. In re Hamilton v. Spiers, 2 U. 225.

The costs of the proceeding in which a writ of prohibition issues from the district court to arrest the doing of a ministerial act by a justice of the peace, when such justice is wilfully assuming an unauthorized jurisdiction, are properly taxed against him. People, ex rel. Ducheneau, v. House, 4 U. 369; 10 P. 838.

Mandamus to compel the canvassing board to issue a certificate of election is a special proceeding hereunder, so as to entitle plaintiff on a judgment in his favor to an allowance for costs, as of course. Page v. Utah Commission, 11 U. 119; 39 P. 499.

GENERALLY. The organic act of Utah Territory gives to the district courts original jurisdiction

in all cases at law and equity. The territorial law provides that in all cases where title to land is involved the winning party shall recover costs; held, that although one of the rules of equity is that costs are in the discretion of the chancellor, yet the legislature can regulate the question of costs in causes in equity. Dudley v. Facer, 8 U. 403; 32 P. 668.

Where a party who obtained judgment in an action in which the referee refused to sign a proposed statement on motion for a new trial appears by counsel and resists the application for a writ of mandate to compel the referee to sign the statement, costs will be awarded against him and not against the referee. Whitmore v. Harris, 10 C. 259; 37 P. 464.

Subdvs. 2, 3, 3684, C. L. 1888, were void so far as they made the right to costs dependent on amount recovered, being a penalty for bringing suit in district court, which had general equity and law jurisdiction under organic act. Hepworth v. Gardner, 4 U. 439; 11 P. 566. See also Miller v. Zeigler, 3 U. 17; 5 P. 518.

3340. Costs in several actions which might have been joined. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs can be allowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other actions were at the commencement of the previous action openly within the state. But the disbursements of the plaintiff must be allowed to him in the action. [C. L. § 3685.

Cal. C. Civ. P. ? 1023.

Action against parties severally liable, ?? 2918, 2954.

In other actions than those

3341. When costs in discretion of court. mentioned in section thirty-three hundred and thirty-nine, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court. [C. L. § 3687*.

3342. Defendants not united recover costs if successful. When there are several defendants in the actions mentioned in section thirty-three hundred and thirty-nine, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court must award costs to such of the defendants as have judgment in their favor. [C. L. § 3688.

Cal. C. Civ. P. 1026.

3343. Costs on appeal from justice's court. In civil actions tried before a justice of the peace, if the prevailing party appeals, and does not recover in the district court a sum greater than the first judgment and costs on appeal, he shall not recover costs on appeal; if the losing party appeals and the prevailing party's judgment before the justice is reduced by an amount greater than the costs on appeal, the former shall be entitled to costs on appeal. In all other cases of appeal from the judgment of a justice of the peace in such actions, the prevailing party shall be entitled to costs. [C. L. § 3689*.

Minn. (1894) 5511. Cal. C. Civ. P. 1027*.

3344. When costs of appeal are discretionary; when not. In the following cases, the costs of appeal are in the discretion of the court:

1. When a new trial is ordered.

2.

When a judgment is modified. In all other cases the prevailing party

shall recover from the other party his costs.

Mont. Civ. P. 2 1855.

Upon obtaining a perpetual injunction restraining all further proceedings to collect the tax, including all proceedings upon a judgment, the complainant

will be allowed his costs in defending the action in the inferior court. Kerr v. Woolley, 3 U. 456; 24 P. 831.

3345. Costs on dismissal for want of jurisdiction or for irregularity. When an action is dismissed from any court for want of jurisdiction or because it has not been regularly transferred from an inferior to a superior court, the costs must be adjudged against the party attempting to institute or bring up the action.

N. Dak. (1895) ? 5582.

Costs on dismissal generally, ? 3190.

Where an action is dismissed for want of jurisdiction, costs cannot be awarded to the prevailing party in the absence of a statute authorizing it. Wall v. Dodge, 3 U. 168; 2 P. 206.

Where district court dismisses action for want of

jurisdiction in justice's court, appellee may recover costs. Cereghino v. Third Dist. Court, 8 U. 455; 32 P. 697. Apparently overruling Wall v. Dodge, 3 U. 168; 2 P. 206, which holds that costs under such circumstances cannot be allowed in absence of statute authorizing it.

3346. Costs on granting continuance. When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement, may be imposed in the discretion of the court or referee, as a condition of granting the same. [C. L. § 3691.

Cal. C. Civ. P. 2 1029.

Postponement, costs, 23133. Referee may postpone, ? 3177.

3347. Costs when tender made before suit. Deposit. When in an action for the recovery of money only, the defendant alleges in his answer that before the commencement of the action, he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court for the plaintiff, the amount so tendered, and the allegation be found to be true, the plaintiff cannot recover costs, but must pay costs to the defendant. [C. L. § 3692.

Cal. C. Civ. P. 1030.

Offer of executor to allow claim in part, effect as to costs, 3861. Tender, ? 3485.

3348. Costs when party acts in representative capacity. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs may be recovered as in actions by and against a person prosecuting or defending in his own right; but such costs must, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the court directs the same to be paid by the plaintiff or defendant personally for mismanagement or bad faith in the action or defense. [C. L. § 3693.

Cal. C. Civ. P. 1031.

When executor, etc., individually liable for costs, 22 3565, 4045.

3349. Costs on review of special proceedings, same as on appeal. When the decision of a court of inferior jurisdiction in a special proceeding, is brought before a court of higher jurisdiction for review, in any other way than by an appeal, the same costs must be allowed as in cases on appeal, and may be collected by execution or in such manner as the court may direct, according to the nature of the case. [C. L. § 3694.

Cal. C. Civ. P. 1032.

Costs in special proceeding, 2 3339.

3350. Filing and service of verified cost bill. Re-taxing. The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve a copy upon the adverse party, within five days after the verdict or 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

or proceeding, which memorandum must be verified by the oath of the party, or his attorney or agent or by the clerk of his attorney, stating that to the best of his knowledge and belief, the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. A party dissatisfied with the costs claimed, may, within five days after notice of filing of the bill of costs, file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge thereof at chambers.

Cal. C. Civ. P. 1033.

Stenographer's fees taxed up as costs, ? 727. Witness fees and mileage paid are taxable. Grant v. U. P. Ry. Co., 6 U. 270; 21 P. 996.

Cost bill containing sheriff's fees for subpoenaing witnesses should show upon whom and where subpœnas were served and number of miles traveled. Where witness fees are taxed, the name, residence, distance traveled from residence to court, and number of days attendance of each witness, should

[C. L. § 3695.

be stated. Cole v. Ducheneau, 13 U. 42; 44 P. 92. Where an affidavit is made on a motion to retax costs, it should state the name and place of residence of the witness, the distance he had to travel from his place of residence to the place of trial, and the number of days he actually attended court as a witness. Id.

Fees for witnesses subpoenaed in good faith and attending, though not actually sworn, may be taxed. Id.

3351. Costs awarded on appeal. Bill filed. Costs include what. Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment. The costs to be awarded to a party as provided in this and the preceding sections shall include the reasonable cost of printing transcripts and briefs, and the cost of transcribing the stenographer's notes or minutes of the trial or hearing. [C. L. § 3696; '92, pp. 19, 20.

Cal. C. Civ. P ? 1034*.

A party ordering transcript cannot tax expense thereof as costs; nor will more than the usual and reasonable expense of printing proofs and abstracts, not exceeding one dollar per page, be allowed. Marks v. Culmer, 7 U. 163; 25 P. 743.

When the omissions and inaccuracies of appellant's abstract render the filing of an additional abstract necessary, the cost of such additional abstract may be taxed against appellant. Munns v. Loveland, — U.-; 49 P. 743.

3352. Costs taxed in justice's court. Itemized. In a justice's court no cost bill need be filed, but the justice must tax the same, and make an itemized statement of all the costs incurred by each party, in his docket.

the fees paid to jurors must be taxed against the unsuccessful party. Mont. Civ. P. ? 1868.

In such court

3353. Interest and costs to be included in judgment. The clerk must include in the judgment entered up by him, any interest on the verdict or decision of the court from the time it was rendered or made, and the costs, if the same have been taxed or ascertained, and he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blank left in the judgment for that purpose, and must make a similar insertion of the costs in the copies and docket of the judgment. [C. L. § 3697.

Cal. C. Civ. P. ? 1035.

3354. Non-resident plaintiff to furnish security for costs, if required. When the plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action must be stayed until an undertaking executed by two or more persons is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court, or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking is executed and filed. [C. L. $3698.

Cal. C. Civ. P. 1036.

Qualifications of sureties generally, 3493.

3355. Id. If security not given, action dismissed. After the lapse

of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court, or judge, may order the action to be dismissed. [C. L. § 3699.

Cal. C. Civ. P. 1037.

3356.

Costs awarded against state, how paid. When the state is a party and costs are awarded against it, they must be paid out of the state treasury and the auditor shall draw his warrant therefor on the general fund. $ 3700.

Cal. C. Civ. P. ? 1038*.

Undertaking not to be required of the state, ? 3495.

[C. L.

3357. Costs awarded against county, how paid. When a county is

a party and costs are awarded against it, they must be paid out of the county treasury. [C. L. § 3701.

Cal. C. Civ. P. 1039.

Undertaking not to be required of a county, ? 3495.

CHAPTER 49.

CONTEMPT.

3358. Enumeration of contempts. What constitutes contempt. The following acts or omissions, in respect to a court of justice or proceedings therein, are contempts of authority of the court:

1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.

2. Breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding.

3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, or other person appointed or elected to perform a judicial or ministerial service.

4. Deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding.

Disobedience of any lawful judgment, order, or process of the court.

6. Assuming to be an officer, attorney, or counsel of a court, and acting as such without authority.

Rescuing any person or property in the custody of an officer by virtue of an order or process of such court.

8. Unlawfully detaining a witness or party to an action while going to, remaining at, or returning from, the court where the action is on the calendar for trial.

9. Any other unlawful interference with the process or proceedings of a

court.

Disobedience of a subpoena duly served, or refusing to be sworn or to

answer as a witness.

11. When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court.

12. Disobedience by an inferior tribunal, magistrate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is

removed from the jurisdiction of such inferior tribunal, magistrate, or officer. Disobedience of the lawful orders or process of a judicial officer is also a contempt of the authority of such officer. [C. L. § 3821.

Cal. C. Civ. P. 1209.

Power of courts generally, 2697.

The court cannot derive its jurisdiction in contempt matters or over the matter which it is necessary for it to have to enforce its orders, unless the statute has been strictly complied with. Young v. Cannon, 2 U. 560.

Where a witness before a referee refuses to answer a question upon the advice of his counsel, honestly given and accepted in good faith, he will be excused from punishment, which would otherwise be imposed. U. S. v. The Church, 6 U. 9; 21 P. 503-524. See p. 15.

Language used in a certain paper submitted to the court quoted and held to be a contempt of court. Id. See p. 26.

Where an injunction enjoined appellant and its agents from entering upon, digging in, or extracting ores from a certain mining claim, and it appeared that appellant was simply remaining in the same situation as when the decree was rendered; held, that appellant and its agents were not guilty of a contempt. Bullion-Beck & Champion Mining Co. v. Eureka Hill Mining Co., 5 U. 151; 13 P. 174.

The court has the right to commit for contempt one persuading a witness subpoenaed before the grand jury to leave the territory. In re Whetstone, 9 U. 156; 36 P. 633.

Lower court may punish violation of injunction notwithstanding appeal. Ex parte Whitmore, 9 U. 441; 35 P. 524.

3359. Entry after eviction by lawful process. Contempt. Restoration. Every person dispossessed of, or ejected from, or out of, any real property, by the judgment or process of any court of competent jurisdiction, and who, not having a right so to do, re-enters into or upon, or takes possession of any such real property, or induces or procures any person not having a right so to do, or aids or abets him therein, is guilty of a contempt of the court by which such judgment was rendered, or from which such process issued. Upon a conviction for such contempt, the court must immediately issue an alias process, directed to the proper officer, and requiring him to restore such possession to the party entitled thereto under the original judgment or process. [C. L. § 3822.

Cal. C. Civ. P. 2 1210.

A misdemeanor, 4311.

3360. Contempt in presence of court summarily punishable. Affidavit in other cases. When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily, for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as in section thirty-three hundred and sixty-seven prescribed. When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officer. L. § 3823.

Cal. C. Civ. P. 2 1211.

Where contempt committed out of court, affidavit stating particular acts of contempt clearly and def

[C.

nitely is necessary to give jurisdiction. Young v. Cannon, 2 U. 560. Affidavits in this case held insufficient. Id.

3361. Contempt not committed in presence of court. Warrant. When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause. [C. L. § 3824.

Cal. C. Civ. P. ¿ 1212.

3362. Id. Order to specify amount of bail. Whenever a warrant of attachment is issued, pursuant to this chapter, the court or judge must direct by an indorsement on such warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such indorsement. $ 3825.

Cal. C. Civ. P. ? 1213.

[C. L.

3363. Sheriff to keep prisoner until discharged or bailed. Upon executing the warrant of attachment, the sheriff must keep the person in