Brown v. Delavau

63 Cal. 303, 1883 Cal. LEXIS 437

Opinion

Per Curiam.

The plaintiff in his complaint demanded that the defendant be enjoined from throwing earth upon her land' in such a manner that it would fall upon the plaintiff’s land, and a judgment for five hundred dollars against the defendant for damages already sustained by the plaintiff by reason of the throwing of earth upon his land by the defendant. He recovered judgment for fifty dollars damages, but for no part of the equitable relief demanded in the complaint. He filed a bill of costs, which the court on motion of defendant ordered stricken from the files. From that order this appeal is taken.

The case as presented by the record is not distinguishable in principle from Himes v. Johnson, 61 Cal. 259, in which we said: “ The plaintiff recovered a judgment for fifty dollars damages and the costs of the action. We think that the court erred in giving the plaintiff a judgment for costs. It is true that the plaintiff prayed an injunction, but this was denied, and the action thereafter should be treated as one for damages only. It is quite clear that a judgment for fifty dollars damages in such an action would not carry costs.”

Besides, it does not appear that the order was excepted to, and we cannot review an order made after judgment unless it is. (Code Civ. Proc. §§ 646, 647, 651.)

Order affirmed.