Williams v. Atchison, Topeka & Santa Fe Ry.

This was an action of claim and delivery for the recovery of specific personal property or its value. To obtain possession of the property pending the action, plaintiff proceeded under the provisions of the code, filed an undertaking in twice the estimated value of the property, and, under this undertaking, took the property into possession. He secured his bond from a surety company, as authorized by section 1056 of the Code of Civil Procedure, and in his memorandum of costs and disbursements, included the item of $43.75 premium charge paid for the bond. On motion of defendant the court, in taxing the. costs, struck this item from the bill, and from its order so doing plaintiff appeals. The sole question presented, therefore, is whether the reasonable charge paid to a surety company for a replevin bond, procured pendent lite by a plaintiff ultimately successful, is or is not a proper item in a cost-bill.

The right to recover costs is purely statutory, and, in the absence of a statute, no costs can be recovered by either party. (Fox v. Hale & Norcross S. M. Co., 122 Cal. 219, [ 54 Pac. 731 ].) Section 1023 of the Code of Civil Procedure is the statute which gives the right of the…