Dow

— The judgment in this case was, that the plaintiff take nothing, and that defendant recover his costs, “adjusted at the sum of $50.50.” The findings on which the judgment was based were filed October 5, 1889. Six days later, on October 11th, one of the attorneys for defendant prepared, verified, served, and filed a memorandum of defendant’s costs, and the amount thereof was afterwards inserted by the clerk in a blank left in the judgment for the purpose. In due time thereafter, the plaintiff moved the court to strike out the costs from the judgment, on the ground that the memorandum was not served and filed in time, and hence the insertion thereof in the judgment was inadvertently and illegally made. The court granted the motion, and from that order this appeal is prosecuted.

*563 The code provides: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the cleric and serve upon the adverse party, within five days after the verdict or notice of the decision of the court, .... a memorandum of the items of his costs and necessary disbursements in the action or proceeding,” etc. (Code Civ. Proc., sec. 1033.)

It is claimed for appellant that his…