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Bracker Stores, Inc. v. Wilson

Supreme Court of Arizona

June 29, 1940

BRACKER STORES, INC., a Corporation and JOSEPH G. BRACKER, and DAVE LEVY and FANNY LEVY, Husband and Wife, and HYMAN DAVISON and JUSTINE DAVISON, Husband and Wife, Appellants,
v.
J. C. WILSON, Appellee

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. Howard C. Speakman, Judge. Memorandum decision on the question of costs.

Mr. Duane Bird and Mr. Thomas L. Hall, for Appellants.

Messrs. Bilby & Shoenhair and Mr. Harold C. Warnock, for Appellee.

OPINION

PER CURIAM.

The appeal was on two grounds: (1) To secure a reversal of the judgment in plaintiff's case, and (2) to secure a reversal of the court's order dismissing the counterclaim. The defendants failed to sustain their appeal on the first [55 Ariz. 513] ground and any and all costs expended by then in that behalf they will have to bear. Judgment in plaintiff's case was affirmed and, under section 1478, Revised Code of 1928, defendants are not entitled to costs on appeal as to that feature of the case.

On the second ground, defendants were successful and are entitled to costs necessarily and actually expended to enable them to present the ruling dismissing the counterclaim. Of course, no evidence was taken on this law question and, therefore, the charge of $150 for the transcript is wrong.

What the defendants are entitled to recover from plaintiff is the filing fee in this court of $25; the costs of minute entry of ruling of the court on the counterclaim, and entry of judgment thereon; copies of the complaint and counterclaim, and that portion of defendants' briefs devoted to the ruling on the counterclaim. Without trying to break down the possible costs of these different items, we think $100 is ample.

Rule XVI of the Supreme Court provides:

"The allowance for the cost of briefs and abstracts of record shall be the

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amount actually and necessarily spent therefor."

The cost bill of defendants fails to show that the sums claimed for briefs and abstract were actually and necessarily expended and on that ground alone the bill might be disallowed, but no objection on that account is made by plaintiff and we will treat it as though it conformed with Rule XVI, supra.

Defendants' cost bill is disallowed except for the sum of $25 for filing fee in this court and $100 ...


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