Wilson

*680 Opinion

Plaintiff appeals from an order denying his motion for costs on appeal.

Facts

On August 19, 1974, judgment on a verdict was entered in favor of plaintiff. On October 15, 1974, defendant filed a notice of appeal from the judgment. On September 19, 1975, the appeal was abandoned and notice thereof served on plaintiff by defendant on the same date. A similar notice was served by the clerk of the superior court on December 12, 1975. Thereafter on December 31, 1975, a memorandum of costs on appeal was filed. On Januaiy 27, 1976, a motion for order awarding costs on appeal was denied.

Contentions

Plaintiff contends he is entitled to costs as the prevailing party and that since the memorandum of costs was filed within 30 days of the notice of abandonment served by the clerk it was timely.

Defendant on the other hand contends that, because plaintiff was aware of the abandonment as early as September 19, 1975, his memorandum of costs filed some three months thereafter was untimely and the trial court properly considered the motion for costs to be an application for relief from late filing under Code of Civil Procedure section 473 and denied same for lack of a showing…