Morris

Plaintiff appeals from a portion of an order partially granting its motion to tax defendants’ costs on appeal following the reversal by another division of this court of a judgment in an eminent domain proceeding (Regents of University of California v. Morris, 266 Cal.App.2d 616 [ 72 Cal.Rptr. 406 ]); by such reversal (solely on the issue of damages) defendants were expressly awarded their costs on appeal. The main objective of plaintiff’s motion was the disallowance of an item of $8,713.09 representing the cost of preparing the record on appeal, principally the reporter’s transcript ($8,240.44). The trial court having awarded defendants $5,210.75 of the amount originally claimed for such transcript, it is now contended that the court should have disallowed in its entirety that portion of the item attributable thereto.

The pertinent background facts are as follows: The trial of the eminent domain proceeding was a protracted one, lasting from January 22, 1965, to March 3, 1965; at various times during the course thereof, the preparation of daily transcripts was ordered by defendants and, also, by the plaintiff. Upon the giving of notice by defendants for the preparation…

I concur in the judgment because I believe that at the first opportunity the Supreme Court will re-examine and overrule Turner v. East Side Canal & Irr. Co. (1918) 177 Cal. 570 [ 171 P. 299 ]. The rule of that case is that when the record on appeal includes a reporter’s transcript which was paid for by the successful appellant for use during the trial, costs on appeal may not include anything for that transcript. This conclusion was felt compelled by the language of what is now section 1034 of the Code of Civil Procedure despite an acknowledgment by the court that the result is not fair and reasonable.

Suppose that in the case at bench the original and one copy of the entire reporter’s transcript on appeal had unquestionably been the precise documents which defendants had obtained and paid for during the trial. The Turner rule would prevent defendants from recovering any part of the expense of the documents as costs on appeal. Since this is a condemnation action, a new transcript ordered by defendants for the appeal would have been chargeable to plaintiff whether the appeal was successful or unsuccessful Surely there is no merit to an interpretation of a statute which encourages…

Plaintiff appeals from a portion of an order partially granting its motion to tax defendants' costs on appeal following the reversal by another division of this court of a judgment in an eminent domain proceeding ( Regents of University of California v. Morris, 266 Cal. App.2d 616 [ 72 Cal. Rptr. 406 ]); by such reversal (solely on the issue of damages) defendants were expressly awarded their costs on appeal. The main objective of plaintiff's motion was the disallowance of an item of $8,713.09 representing the cost of preparing the record on appeal, principally the reporter's transcript ($8,240.44). The trial court having awarded defendants $5,210.75 of the amount originally claimed for such transcript, it is now contended that the court should have disallowed in its entirety that portion of the item attributable thereto.

The pertinent background facts are as follows: The trial of the eminent domain proceeding was a protracted one, lasting from January 22, 1965, to March 3, 1965; at various times during the course thereof, the preparation of daily transcripts was ordered by defendants and, also, by the plaintiff. Upon the giving of notice by defendants for…