I must respectfully dissent from the opinion expressed by the majority primarily because it suggests a procedure I perceive to be a departure from the orderly and, so far as possible, expeditious trial of issues and administration of justice. It is my firm belief that where a complaint alleges attorney’s fees are part of the damages suffered in a breach of contract action, as here, they should be pleaded and proved before entry of judgment as an item of damages reserving, of course, proof of attorney’s fees incurred after judgment. As noted, however, attorney’s fees claimed under a statute can be claimed and proved up in the manner provided for as an item of costs.
This matter comes to us on a very unusual record when the trial court entered a new “Judgment After Jury Trial” adding $21,988.75 attorney’s *431fees as an additional item of “damages.” This was done after the judgment had been entered and the notice of appeal had been filed on it. The appeal on the original judgment was considered and affirmed by us in Mabee v. Nurseryland Garden Center, Inc., 84 Cal.App.3d 968 [149 Cal.Rptr. 105], This is an appeal from the revised judgment which only added attorney’s fees.
John C. Mabee (Mabee) sued Nurseryland Garden Centers, Inc. (Nurseryland) for breach of an agreement to lease real property. The amended complaint for damages against Nurseryland alleged the lease agreement which provided “should either party commence any legal action or proceeding against the other on the lease, the prevailing party shall be entitled to an award of attorney’s fees as set by the court, including costs of appeal, if any.” It alleged there were legal expenses and costs incurred, they would be proven at time of trial, and included a prayer for attorney’s fees.
At the trial, Mabee presented no evidence of the reasonable attorney’s fees incurred in the action, nor did he argue it was appropriate for the juiy to award any fees though instructions on damages were given as follows:
“The measure of damages is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which, in the ordinary course of things, would be likely to result therefrom.
“A proximate cause of damages—we use that phrase, proximate cause—a proximate cause of damages is a cause which, in natural and continuance [sic] sequence, produces the damages, and without which the damages would not have occurred.”
The jury returned a general verdict in favor of Mabee for $44,178. The jury was excused and Nurseiyland’s attorney stated he would file motions for a new trial and a judgment notwithstanding the verdict.1 Mabee’s attorney then informed the court there was also the matter of attorney’s fees to be considered and he would notice a motion. Judgment on the verdict in open court was entered that day, April 30, 1976.
*432On May 7, 1976, Mabee filed his memorandum of costs which contained no claim for attorney’s fees. On June 7, 1976, Nurseiyland filed its notice of appeal. The cost bill was opposed in certain respects and on June 24, 1976, after a hearing, the court entered its order taxing costs and fixing the amount at $2,552.16.
On June 28, 1976, Mabee gave notice of a motion for an order awarding reasonable attorney’s fees under the above-quoted clause in the lease agreement. The motion was opposed2 as untimely, beyond the court’s jurisdiction and in derogation of Nurseryland’s right to have the issues tried by the jury.
Mabee consistently argued attorney’s fees' should be included as an element of damages to be determined by the trial judge, not the jury, according to the terms of the lease agreement. He offered the jury no evidence relative to attorney’s fees nor did he argue that point to it. As noted above, immediately following the trial, after the jury was excused, he told the judge he would be making his motion for reasonable attorney’s fees shortly.
On October 20, 1976, the court sent a letter announcing its decision and notified the parties in this manner:
“The Court agrees with [Mabee’s] premise that attorney fees are an element of damages that should be included in the judgment and it is so ordered. What constitutes reasonable fees was not the dispute. The accounting filed by Mr. Gamer [Mabee’s attorney] is accepted by the Court as the proper measure of reasonable fees that would be due under the provisions of the lease contract.
“Judgment will be drawn accordingly.”
On November 2, 1976, the trial court signed a new “Judgment, After Jury Trial” which reads as follows:
“Pursuant to jury verdicts,
*433“It Is Ordered that plaintiff John C. Mabee have Judgment against defendant Nurseryland Garden Centers, Inc., in the sum of $44,178 plus interest at the rate of 7% per annum from April 30, 1976.
“It Is Further Ordered that plaintiff John C. Mabee be entitled to reasonable attorneys’ fees from defendant Nurseryland Garden Centers, Inc., for services performed up to and including June 21, 1976, in the sum of $21,988.75 plus interest at the rate of 7% per annum from April 30, 1976.
“It Is Further Ordered that plaintiff John C. Mabee shall recover his costs in the sum of $2,552.16.”
On December 27, 1976, Nurseryland filed its appeal from that portion of the judgment entered November 2, 1976, which awarded attorney’s fees.
An agreement for the payment of attorney’s fees to the prevailing party is generally enforceable as an item of special damages (Wiener v. Van Winkle, 273 Cal.App.2d 774, 784 [78 Cal.Rptr. 761]). Such fees have historically been recoverable by virtue of a contract and require pleading and proof there is a provision for them (Genis v. Krasne, 47 Cal.2d 241, 246 [302 P.2d 289]).
Attorney’s fees, unlike other items of damage, may be made by the court (Genis v. Krasne, supra, 47 Cal.2d 241, 246) or by a jury (Mitchell v. Towne, 31 Cal.App.2d 259, 266 [87 P.2d 908]) without hearing evidence or making a finding as to the amount. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 119, p. 3270; 18 A.L.R.3d 733.) It is not uncommon for a jury to determine who is the prevailing party and then fix attorney’s fees as it would find liability in a negligence case and then fix damages. It is not essential the judgment be final before fees for prosecution of the case to judgment are ascertained. Here the verdict determined the prevailing party and the court could rely on that for the propriety of fixing attorney’s fees as an additional item of damages.
The record discloses an ambiguity in the provision of the lease contract which allows attorney’s fees to the prevailing party in the amount “set by the court.” Mabee argues this means the attorney’s fees should be determined by the “judge,” as opposed to the “jury,” because the word “court” is synonymous with “judge.” On this basis Mabee did not present evidence of reasonable attorney’s fees or request damages from the jury *434on that issue; instead, he elected to pursue the claim before the judge at a later date. It is within the province of the trial judge to interpret the meaning of the contract and we cannot say it was an abuse of discretion for the court to accept Mabee’s position that this item of damages would be fixed by the trial judge, not the jury.
Assuming it was the understanding of everyone the issue of attorney’s fees would be determined by the judge alone, this was in the nature of a bifurcated trial, but judgment should be entered after all damages were fixed. This was not done. Mabee allowed judgment to be entered, and received notice of entry of the judgment; he filed his cost bill which properly follows entry of judgment; notice of appeal was filed; he received appellant’s brief, and filed his own briefs. All of this transpired without bringing to anyone’s attention the judgment had been erroneously entered if indeed it was. An important aspect of any appeal is that the appellate court have before it the one final judgment (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 36, p. 4050 et seq.). If the trial had not been completed, the judgment was not properly entered and Mabee had a duty to correct the record when he had notice of the entry of judgment. He had adequate time to move to set aside or vacate the judgment. If he truly believed the trial had not been completed, the matter should not have been allowed to enter the appellate process or at least the issue should have been raised by him on appeal. The record discloses he made no effort to bring this matter to the court’s attention but rather elected to stand by the judgment as entered. I believe Mabee waived any right to go forward with evidence of additional damages. In any event, the trial court has no power to amend, correct, vacate, or set aside its judgment once the notice of appeal has been given (Takahashi v. Fish and Game Com., 30 Cal.2d 719, 725 [185 P.2d 805]). When the notice of appeal was filed on June 7, 1976, the trial court lost jurisdiction to consider damages any further.
This, however, does not preclude the pursuit of a claim for the attorney’s fees as if they were statutory “costs” after entry of judgment (System Inv. Corp. v. Union Bank, 21 Cal.App.3d 137, 162 [98 Cal.Rptr. 735]). The trial court’s jurisdiction to add costs, a matter only incidental to the judgment, continues (Code Civ. Proc. § 904.1, subd. (b); Kellogg v. Honcutt Gold M. Co., Ltd., 25 Cal.App.2d 109, 112 [76 P.2d 551]).
Civil Code section 1717 provides statutory authority for award of attorney’s fees as costs:
*435“In any action on a contract, where such contract specifically provides that attorney’s fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements.
“Attorney’s fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney’s fees is void.
“As used in this section ‘prevailing party’ means the party in whose favor final judgment is rendered.”
In Beneficial Standard Properties, Inc. v. Scharps, 67 Cal.App.3d 227 [136 Cal.Rptr. 549], Beneficial leased certain property from the County of Los Angeles and subleased to Scharps. The sublease provided that should either parly bring or commence legal proceedings to enforce any of the terms of the lease, the successful party shall be entitled to receive reasonable attorney’s fees and costs as fixed by the court. Scharps defaulted and Beneficial brought an action referring to the particular provision in the lease. Beneficial moved for summary judgment and the motion was granted. After entry of judgment, Beneficial filed a memorandum of costs which included as an item of costs an amount for attorney’s fees. The trial court denied them saying they are recoverable only as special damages. On appeal the order denying attorney’s fees was reversed. Referring to T.E.D. Bearing Co. v. Walter E. Heller & Co., 38 Cal.App.3d 59 [112 Cal.Rptr. 910], the court said in Beneficial Standard Properties, Inc. v. Scharps, supra, 61 Cal.App.3d 227, at pages 230 to 232:
“It explained that the primary purpose of this section is to transfer a unilateral contractual contract right to attorneys’ fees into a reciprocal provision, giving the right to recover to either party. It then explained that the contracts before it provided that attorneys’ fees and costs would be awarded to only one of each of the contracting parties; therefore, the contracts in said case brought section 1717 into play. This conclusion was followed, starting at p. 63, by this statement: ‘The legal situation before us is, perhaps, unique in the sense that Civil Code section 1717 has been used in the past to benefit the prevailing party in cases where the prevailing party was not also the party to be benefited by the unilateral contractual provisions granting attorneys’ fees. That is, the cases we have *436found have generally dealt with; the granting of attorneys’ fees to the prevailing party, under Civil Code section 1717, where the contract had granted attorneys’ fees solely to the other contracting parly who lost the law suit. But the language of Civil Code section 1717 is not so limited as this. The statute says that attorneys’ fees shall be awarded to “the prevailing party, whether he is the party specified in the contract or not.” The language of Civil Code section 1717 does not say that attorney fees will be awarded to the party not benefited by the provision granting attorneys’ fees if that party prevails. The language is broader than that, and it awards attorneys' fees to “the prevailing party” whether he is the one specified in the contract or whether he was the one to be disadvantaged by the contract.' (Italics added.)
“. . . it does for the first time, at least to our knowledge, recognize that the language of the section is broader in scope than has usually been attributed to it. While the primary purpose might have been to transfer a unilateral contractual right to attorneys’ fees into a reciprocal right to a non-named party, the language of the section is not limited to this purpose alone. The pertinent words are: ‘. . . the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees . . .’ (Italics added.) As T. E. D. Bearing said at page 63: ‘. . . section 1717 does not say that attorney fees will be awarded to the party not benefited by the provision granting attorneys’ fees if that party prevails. The language is broader than that, and it awards attorneys’ fees to “the prevailing party”.’ (Italics added.)
“. . . Each party to the lease is included in this language and therefore is a specified party and the only requirement remaining to bring section 1717 into operation is that one of them becomes the prevailing party in an action concerning the lease. The end result is therefore the same as in T. E. D. Bearing in that Beneficial had rights to attorneys’ fees by contract and also by statute, and therefore an option as to the procedure to follow. The trial court could have properly granted attorneys’ fees as ‘costs’ to Beneficial as the ‘prevailing’ party ‘in whose favor final judgment is rendered.’ ”
The facts of our case are riot unlike those in Beneficial, supra. Mabee had an option at the beginning of the trial and could have sought attorney’s fees as damages or as costs authorized by statute under Civil Code section 1717. I would ignore the theory upon which the court allowed this award if the action of the court could be sustained as an item of costs, but Mabee faces some special procedural problems here.
*437Code of Civil Procedure section 1033 requires the filing of a motion for costs within 10 days of entry of judgment. The failure to file a cost bill extinguishes the remedy to recover costs (Coast Electric Service, Inc. v. Jensen, 111 Cal.App. 124, 126 [295 P. 346]; see also Wilson v. Hinkle, 67 Cal.App.3d 506, 512-513 [136 Cal.Rptr. 731]). The California courts have not been liberal in the application of the 10-day time restriction. It is significant here that a cost bill was timely filed but did not include attorney’s fees. I am unable to find an arguable basis for allowing a second such cost bill to be filed beyond the statutory time. If the statute authorizes the treatment of such fees as a recoverable “cost” (Beneficial, supra), they should be requested in the manner provided by law (Code Civ. Proc., § 1033). In the absence of a showing of mistake, inadvertence, surprise or excusable neglect it was improper to award costs pursuant to a motion filed almost 60 days after judgment. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 110, p. 3263.) No such showing has been made though presumably it could still be made (Code Civ. Proc., § 473).
To allow a plaintiff to continue his proof of damages any time even after judgment has been entered is to put all the parties in a state of quandary as to what is due ahd when the case finally terminates. While attorney’s fees after judgmMt.'present a matter different from ordinaiy damages, for obvious practical reasons a judgment should contain all damages incurred up to the time of its entry excepting only those items of “costs” which are requested immediately (within 10 days) after entiy of the judgment. It goes against the orderly determination of a cause to suggest damages may be proved in bits and pieces from time to time after judgment. The rule I suggest comports with the reasons for the one judgment rule and would obviate a second appeal on the issue of the reasonableness of damages. Its value to the appellate process is self-evident.
The order allowing attorney’s fees should be reversed. The judgment after jury trial dated November 2, 1976, should be vacated.
The motions for new trial and judgment NOV were filed but later withdrawn by Nurseryland.
Nurseryland sought relief by way of writ of prohibition filed July 7, 1976, seeking to prohibit the superior court from proceeding with this hearing. The Court of Appeal denied the writ leaving Nurseryland to make its argument to the superior court, there being available to it adequate remedy by way of appeal.