Countryman

On a former appeal by the defendant in ■this action the judgment of the lower court was sustained. ( 35 Cal. App. 728 , [ 170 Pac. 1069 ].) Upon the going down of the remittitur the plaintiff duly filed a memorandum of his costs on appeal. A motion to have the costs taxed was made by defendant, which motion was denied and defendant appeals.

The memorandum of costs is entitled “Memorandum of Costs and Disbursements on Behalf of Plaintiff on Appeal from Judgment, Including the Order Denying Motion for New Trial,” and the item therein objected to is as follows:

The judgment in the cause appealed from was entered in favor of plaintiff on April 3, 1914. Defendant gave notice of its intention to move for a new trial on April 11, 1914, and appealed from said judgment on April 21, 1914. It thus appears from the record that the item of cost in question was a disbursement actually made before any appeal taken.

The notice of intention to move for a new trial specified that said motion would be made “upon affidavits to be made, served, and filed, and upon a bill of exceptions to be. thereafter prepared, served and settled.” Within the time allowed by law, and the stipulation of the parties…