Griffith

This is an appeal from an order striking from the files the plaintiff’s memorandum of costs in this action.

The order appealed from was based upon and is the culmination of a motion duly interposed by the defendant for that purpose upon the ground that the plaintiff did not serve upon it or its attorney a copy of said memorandum of costs within five days after the rendition by the jury of the verdict in this action, as required by section 1033 of the Code of Civil Procedure.

Said motion was supported by an affidavit by the attorney for the defendant in which it is alleged that the verdict was rendered on the fourth (stated in the briefs of counsel on both sides as the “5th”) day of December, 1913; that a bill of costs was filed by the plaintiff with the clerk of the superior court of Napa County on the fifth day of December, 1913, purporting to contain a statement of the costs and disbursements accruing in favor of and made by the plaintiff in this action, but that the plaintiff did not, within five days after the rendition of the verdict in the action, serve upon the defendant or its attorney a copy of said bill of costs, or any notice of the filing of the same.

The affidavit…