Turner

On an appeal by the plaintiffs in this action the part of the judgment appealed from was reversed ( 168 Cal. 103 , [ 142 Pac. 69 ]). Upon the going down of the remittitur the plaintiffs filed a memorandum of their costs on appeal. A motion to have costs taxed by the court was made by defendant, and this motion was denied. We have here an appeal by defendant from the order denying this motion.

The appeal presents the question of the right of plaintiffs to recover as costs of the appeal the amounts shown by two items of the memorandum of costs.

The statute in force at the time the decision of reversal by this court was rendered (June 29, 1914) was, so far as material, as follows:

It sufficiently appears from the affidavit of one of the plaintiffs’ attorneys that no amount whatever was actully paid out, or, indeed, any pecuniary liability incurred, in the matter of this transcript of testimony at any time after the judgment appealed from was given, or, so far as appears, with any view to taking any appeal. At the time of the trial, which, according to the affidavit, commenced in the year 1906, the trial court ordered the testimony written up at the expense of the parties for the…