Baldwin, J. concurring.

This is an action to quiet the title to certain land in the county of Alameda. The land is divided into three tracts, one of which contains two hundred and twenty-three acres, and the other two, one hundred and eleven acres each. Chapin and Mastick, the plaintiffs, and Hibberd and Freaner, defendants, are the only parties interested in the controversy. Chapin claims to be the owner of the two tracts of one hundred and eleven acres, and Mastick claims the tract of two hundred and twenty-three acres. Hibberd claims all three of the tracts, and the tract of two hundred and twenty-three acres is also claimed by Freaner. The land belonged originally to William W. Chipman and *418 Gideon Aughenbaugh, and was sold, as their property, under certain judgments recovered against them in the District Court for Alameda county. Under these judgments the present claimants acquired whatever rights they possess, and the questions in the case turn upon their validity and effect.

First in order, is a judgment in favor of Martin C. Briggs and James McGowan, rendered on the twenty-second of August, 1854. This is a judgment for costs, and it is admitted that no memorandum of the costs was delivered within the time limited by the statute. The judgment, as entered in the judgment book, recites this fact, but includes certain fees which had been paid to the officers of the Court; and it is contended that these fees were properly inserted in the judgment. Their insertion was a mere ministerial act of the Clerk, and the validity of this act depends entirely upon the authority for its performance. The recovery of costs is a matter regulated exclusively by statute, and the mode pointed out for that purpose must be strictly pursued. If the provisions upon the subject, in force at the time of the rendition of this judgment, were not complied with, the fees were improperly inserted, and to that extent the judgment cannot be maintained. The Practice Act, as it then stood, provided that the prevailing party should be allowed certain sums, by way of indemnity for his expenses in the action, and that the sums so allowed should be termed costs. (Com. Laws, sec. 494.) For the purpose of recovering the costs, the party was required to deliver to the Clerk of the Court a memorandum of the items; and it was provided that he might include in the costs all necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, expenses in taking depositions by commission or otherwise, the compensation of Referees, and the fees paid on the commencement of the action, or on filing a notice of appeal. The memorandum, accompanied by an affidavit of its correctness, was required to be delivered within twenty-four hours after the rendition of the verdict, and if not so delivered, it was declared that the costs should be deemed waived. (Id. 610, sec. 510.) It was provided that the Clerk should include in the judgment entered up by him, the costs, etc. We do not see how there can be any difference of opinion as to the construction of these provisions. The successful party was allowed certain sums, by way of indemnity for his expenses, and these allowances were denominated costs. No distinction was made between the fees of officers and other expenses, and disbursements of every character were placed *419 upon the same footing. The party entitled to costs was required to claim them in a particular manner, and the consequence attached to a failure was, that they should be considered waived. When properly claimed, it was the duty of the Clerk to include them in the judgment; but until they were claimed, he was vested with no authority for that purpose. There was no general right of recovery, and the provisions in relation to the delivery of a memorandum were not intended to be directory. No right was created, apart from the remedy provided for its enforcement, and in respect to this remedy there is no room for construction. It was expressly declared, that a failure to deliver the memorandum within the time specified, should operate as a waiver of the costs. Such a failure not only extinguished the remedy, but forfeited the right itself. It is contended that an objection of this nature is not available in a collateral proceeding; but this view, we think, is incorrect. The objection goes to the legality of the judgment, and the ground upon which it proceeds is, that the judgment pro tanto is a nullity. If costs are illegally inserted, the act of inserting them is simply void, and there is no reason why this illegality may not be inquired into collaterally. Under the code of New York, costs are taxed by the Clerk, upon notice to the adverse party, but no time is fixed within which the notice is to be given, and the costs are not waived by a failure to give it. The Courts hold that the provisions in regard to notice are directory, merely, and that the remedy, when the notice has not been given, is by a motion to retax. The cases show, however, that the rule would be different if the right to recover depended upon the giving of the notice, and a time were fixed within which the notice must be given. It has been uniformly held that the insertion of the costs in the judgment did not take away the right to retax, upon motion.

There is another view of this judgment which is equally fatal. The Clerk had no right to insert the costs after the judgment was entered up and the record completed. The language of the statute was, that he should include the costs in the judgment, and not that he should enter the judgment and at some subsequent period insert the costs. His authority terminated with the entry of the judgment, and if by mistake, or otherwise, the costs were omitted, the remedy was by a motion to amend. The Court alone was competent to grant the relief, and the act of the Clerk was illegal and void.

The title of Chapin rests entirely upon this judgment, and the view *420 we have taken disposes of the controversy as to him. The costs on appeal were never entered upon the judgment docket, and consequently did not become a lien upon the property until the levy of the execution. The rights of Hibberd had then attached, and his title to the two tracts of one hundred and eleven acres is perfect and complete. Mas tick claims under this judgment, and also under a judgment in favor of Drexel, Sather & Church, rendered on the twenty-second of May, 1855. It is proper, before considering the questions in relation to this judgment, to refer to the judgment relied upon by Hibberd. This judgment was rendered on the first of March, 1855, and duly entered upon the judgment docket. An appeal was taken to this Court, but the undertaking filed was in a less sum than that required by the statute to stay proceedings in the Court below. The undertaking was excepted to, but no effort was made to enforce the judgment during the pendency of the appeal. The question is, whether the appeal operated to extend the lien beyond the period of two years from the docketing of the judgment. The Court below held that it did not, and we are of the same opinion. The case of Dore v. Covey ( 13 Cal. 502 ) is not in point. The question there was, whether the insufficiency of the undertaking to stay proceedings was available to the sureties as a ground of defense, and no opinion whatever was expressed upon the question now before the Court. The two questions are entirely different, and we are unable to see in what respect their determination depends upon the same, or even analogous principles. The whole inquiry here would seem to be, whether the party was in a situation to prosecute his judgment to satisfaction, and upon this subject there can be no difference of opinion. He was under no legal disability, and the course which he pursued was a matter of choice, and not of necessity. He might have sued out an execution at any moment, and his mere omission to do so was not sufficient to preserve the lien. In Dewey v. Latson, ( 6 Cal. 130 ) the decision proceeded entirely upon the ground that the filing of a proper undertaking operated as a suspension of the right to enforce the judgment. An undertaking insufficient in amount has no such effect, and if this had been the character of the undertaking in that case, there is no doubt that the decision would have been different. “ The obvious intention,” said the Court, “ was to charge the estate of the judgment debtor, and give the creditor two years to make his money. The statute intended that the time should run from the docketing of the judgment, or the period at which *421 the plaintiff was in a situation to take out execution, and pursue his remedy to final satisfaction. By the defendant’s own act, the force of that judgment has been suspended, and the lien, which is merely an incident, must share a like fate. It would be absurd to say that a lien attached upon a judgment, and expired by its own limitation, while the judgment was still in fien, and could not be prosecuted to full fruition.” No objection was made to the sufficiency of the undertaking, and the case turned wholly upon the legal impediment in the way of the plaintiff. The defendant, by complying with the statute, had obtained a stay of proceedings, and the plaintiff was cut off from the privilege of pursuing his remedy pending the appeal. These were the reasons given for the decision, and, in our opinion, they are the only reasons upon which it can be maintained. To apply the same rule in all cases, without reference to the sufficiency of the undertaking, would be to ignore the provisions of the statute.

The result of our conclusion upon this point is, that the claim of Hibberd to the tract of two hundred and twenty-three acres is not maintainable. His rights were acquired subsequently to those of Mas-tick and Freaner, and the controversy as between them is the only remaining subject of consideration.

The judgment of Drexel, Sather & Church, under which Mastick claims, was for the foreclosure of a mortgage upon other property, situated in the same county. This judgment was in the form usually adopted in such cases. It ascertained the amount due, and directed a sale of the mortgaged premises, and the application of the proceeds to the payment of the debt. It provided for the recovery of any deficiency which might exist, and authorized the issuance of an execution for that purpose. It was docketed on the twenty-second of May, 1855. Freaner claims under a judgment of the same character, rendered on the twenty-fourth of November, 1854, and docketed on the stime day. Neither of these judgments was satisfied by a sale of the mortgaged property. Under the former, the sale was made, and a report of the deficiency filed, on the twenty-fourth of July, 1855. Under the latter, the sale was made on the thirty-first of July, 1855, and a report of the deficiency filed on the twenty-fourth of August, 1855. The question is, at what time did the lien of these judgments attach upon the land in controversy. On behalf of Freaner, it is contended that the lien attached at the time of docketing; but it is urged in favor of Mastick, that no Hen was acquired until a sale was made, and the deficiency *422 ascertained. Section two hundred and forty-six of the Practice Act provides that, “ in an action for the foreclosure or satisfaction of a mortgage of real property, or the satisfaction of a lien or incumbrance upon property, real or personal, the Court shall have power, by its judgment, to direct a sale of the property, or any part of it, the application of the proceeds to the payment of the amount due on the mortgage, lien, or incumbrance, with costs, and execution for the balance.” We have held, in reference to this section, that in actions of foreclosure its effect was to authorize a personal judgment against the mortgagor, in addition to the relief usually granted in such cases. (Rollins v. Forbes, 10 Cal. 299 ; Rowland v. Leiby, 14 Id. 156.) Where such a judgment is rendered, there is no doubt that, when docketed, it becomes a lien in accordance with the statute. It is obvious, however, that nothing but a judgment establishing a definite personal liability can have this effect. A mere contingent provision, referring to no particular amount, and in abeyance until the contingency is determined, is not within the meaning of the statute. It may become a valid and perfect judgment; but until the amount to be recovered is ascertained and fixed, no effect can be given to it as a lien. In the present case, the provisions in question were of this character, and no general lien was acquired by the docketing of the judgment. It is no answer to say that the judgments contained a statement of the amount due. There was no personal judgment for this amount, nor was there anything in the nature of a personal judgment, beyond the mere direction for the issuance of an execution, in the event of the insufficiency of the mortgaged property to pay the debt. The whole matter was contingent, indefinite and uncertain, and so long as this continued to be the case, no effect whatever could be given to it.

There are several other questions alluded to in the briefs of counsel, but they áre not of sufficient importance to demand special attention.

We think the conclusion of the Court below was correct, and the judgment is therefore affirmed.

On petition for rehearing, Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.

The petition for a rehearing in this case must be denied. So far as Chapin is concerned, it is unnecessary to add anything to what was said in our former opinion. On behalf of Hit|berd, it is earnestly contended that the views expressed by us, in relation to the effect of the *423 undertaking to stay proceedings, were erroneous. But we see nothing in the authorities cited to shake our confidence in these views, and we are satisfied that the conclusion arrived at was correct. It is evident that the judgment might have been enforced, notwithstanding the undertaking, and the very ground upon which the Court proceeded in Dewey v. Latson is, therefore, wanting. Of course, the mere fact that no execution was issued pending the appeal, amounts to nothing, and as the undertaking was insufficient to stay proceedings, we do not see that there was any legal necessity for the course pursued. The undertaking having been excepted to, there is no foundation for the argument upon the ground of acquiescence; nor, indeed, could any presumption of acquiescence arise, for there could be no valid waiver of the proper statutory undertaking, except in writing. (Pr. Act, sec. 358.) It is of no consequence that the undertaking was accepted and filed by the Clerk; he had no discretion in the matter, and could not bind the appellee by receiving and filing an undertaking which he had no authority to reject. In reference to the rights of Freaner, it is only necessary to say, that the errors of fact suggested by counsel are immaterial, and do not affect the merits of the controversy. Our impression as to the character of the judgment of Drexel, Sather & Church, was derived from the report of the referee, and may have been erroneous. But the limitation upon the lien did not commence to run until the deficiency was ascertained, and an execution could be issued for its recovery, and the legal result is therefore the same. The judgment of Freaner created no personal liability, except for the payment of the deficiency.

Rehearing denied.