Roberts

Plaintiffs are husband and wife, and this is an action to recover damages for slanderous words alleged to have been spoken of and concerning the latter by defendant. A demurrer to the complaint was sustained, and, plaintiffs declining to amend, final judgment was rendered in favor of defendant for one hundred dollars counsel fees, as provided by section 7 of an act concerning actions for libel and slander, approved March 23, 1872, and for costs in the sum of seven dollars and seventy-five cents. A memorandum of costs was made out, served and filed, as required by section 1033 of the Code of Civil Procedure, but which did not include the one hundred dollars allowed by the court as a counsel fee.

Appellants claim that the court erred, first, in sustaining the demurrer to the complaint; and, second, in including the sum of one hundred dollars as counsel fees in the judgment, the same not having been mentioned in the memorandum of costs as filed.

The language complained of is set forth in the complaint as follows;

The allegation of the complaint is:

This court construed the above section in Jacobi v. Baur, 55 Cal. 554 , and held it did not have the effect of entitling a party to…