In Stockton Theatres, Inc. v. Palermo (1956), 47 Cal.2d 469, 477 [10] [304 P.2d 7], we declared that “Having concluded that section 1035 of the Code of Civil Procedure permits as an item of costs on appeal the premium on a bond where one is required by law (Code Civ. Proc., § 946) in order to preserve an attachment, the cause must be reversed and remanded for a determination by the trial court as to whether or not a bond was necessary in the case under consideration.” (Italics added.) The order taxing costs was reversed and the trial court “directed to determine the necessity for the bond required to preserve the attachment pending appeal, and, if it is determined that such bond was necessary, allow the amount of the premium paid therefor as an item of the costs on appeal to which plaintiff is entitled.” (Pp. 478-479 of 47 Cal.2d; italics added.)
Following a hearing, including the taking of evidence, the trial court “Determined that under the law and evidence it was unnecessary to file the corporate surety bond herein for the preservation of the attachment on appeal and the amount of premium thereon is not a proper item of costs on appeal.” I believe that the trial court’s determination, made pursuant to our express direction, is supported by the record and that we should uphold it.
This was an action brought by plaintiff for restitution of the theatre, in which plaintiff recovered judgment in the trial court for $13,658.75. An abstract of that judgment against defendant was recorded in the office of the county recorder of the county (San Joaquin) in which the theatre (which defendant owns) is located. Both parties appealed from the judgment, with plaintiff claiming it was entitled to recover its entire demand of $130,000. It appears that the bond posted by plaintiff to preserve its attachment on appeal was in double *353the amount (see Code Civ. Proe., § 946) of $116,341.25 ($130,000 claimed by plaintiff, less $13,658.75 covered by the recorded abstract of judgment), and the bond premium of $6,980.49 which plaintiff now seeks to have taxed to defendant as one of the costs on appeal was based on such doubled amount. However, although plaintiff prevailed on the appeal, it prevailed to the extent of an increase of only $32,333.44 over its trial court judgment of $13,658.75, and not to the extent of the $116,341.25 increase which it had claimed on appeal and on which (doubled) the bond premium was based. (See Stockton Theatres, Inc. v. Palermo (1953), 121 Cal.App.2d 616, 632 [264 P.2d 74].) Thus the sum of $32,333.44 won by plaintiff on the appeal was the only claim with respect to which it was justified in fairness and in law to claim and recover “necessary” costs on appeal. Otherwise there would seem to be no reasonable limit in the amount which might be claimed against a defendant whose property has been attached on a claim however grossly in excess of the actual recovery by plaintiff on appeal. If plaintiff here had recovered only an additional $100 on the appeal, rather than $32,333.44, under the majority opinion it apparently would still be considered “necessary” as a matter of law that plaintiff preserve its attachment by a bond in double the amount of $116,341.25. The majority must consider the entire amount to be necessary as a matter of law because they reverse the trial court’s findings on the evidence and remand the cause “with directions to the trial court to allow the [entire amount of] premiums on said bond.” Surely a defendant should not be taxed with the premium incident to maintaining such an excessive claim.
In Moss v. Underwriters’ Report, Inc. (1938), 12 Cal.2d 266, 274-275 [9-12] [83 P.2d 503], it was pointed out that the statute (Code Civ. Proe., § 1033) which provides that a successful litigant furnish a memorandum of his costs and “necessary disbursements ’ ’ in the action ‘ does not contemplate that a defendant must pay all of the successful plaintiff’s expenses in connection with the litigation,” and that “the right to reimbursement for expenses depends upon the statutory provisions concerning costs and not upon the necessity, in the mind of the litigant, or his counsel, for the outlay.” (See also Simms v. County of Los Angeles (1950), 35 Cal.2d 303, 319 [217 P.2d 936].) In the present case the necessity, in the mind of plaintiff or his counsel, of maintaining an additional *354claim on appeal in the amount of $116,341.25 does not warrant taxing defendant as a matter of law with the cost thereof when plaintiff was successful to the extent of only $32,333.44.
Further, from testimony of defendant, which the trial court was free to accept as true, defendant owned during the period here involved unencumbered real property of a value in excess of $100,000 upon which plaintiff’s judgment was a lien following recording of the abstract thereof. This evidence is plainly sufficient to support that court’s implied finding that plaintiff’s security for its total recovery of nearly $46,000 ($13,658.75 original judgment, plus $32,333.44 additional recovery on appeal) was ample, and that court’s determination that the surety bond to preserve the attachment on appeal was wholly unnecessary. Section 1035 of the Code of Civil Procedure provides that the premium on the bond is not recoverable as costs if the court ‘ determines that the bond was unnecessary.” Pursuant to this court’s direction, the trial court upon sufficient evidence has made its determination and I would uphold it and affirm the order appealed from.
Shenk, J., and Me Comb, J., concurred.
Respondents’ petition for a rehearing was denied January 14, 1959. Shenk, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.