Hubbard v. Jurian

In the above-entitled action the lien claimants Mathewson and Guth, whose actions to foreclose their respective liens were consolidated with those of several other lien claimants, have filed a petition for rehearing in which the only point made is that the opinion as originally filed failed to directly make any award for costs incurred upon the appeal, and that, inasmuch as the judgment of the lower court was materially modified as to some of the lien claimants, the costs of appeal, unless otherwise directed, would fall upon all of the respondents under the provisions of the rules of the supreme court and district court of appeal, which provide that "in all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to the costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal." (Rule 23, [160 Cal. liii, 119 Pac. xiii].)

While it is true that the judgment appealed from was materially modified by the original opinion in so far as certain designated lien claimants were concerned, nevertheless it was the intent and purpose of the opinion to affirm the judgment in so far as it related to the claims of Guth, Mathewson, and O'Brien Lumber Company, and while that intent and purpose is fairly inferable from the concluding paragraph of the opinion, nevertheless to the end that there may be no doubt upon that point we will say that the judgment allowing the Guth, Mathewson, and O'Brien Lumber Company claims was affirmed in all of its substantial features, and therefore it is directed that these particular claimants should be and they are hereby relieved from the costs of appeal.

The petition for rehearing is denied, as is also the petition of the defendant Maryland Casualty Company.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1918. *Page 775