Hotchkiss v. Smith

Citations

• 108 Cal. 285
• 41 P. 304
• 1895 Cal. LEXIS 856

Syllabus

<p>Costs—Fees and Expenses of Keeping Attached Property—Cost Bill. Where the fees and expenses of a sheriff for the keeping of property held under a writ of attachment are not claimed by the plaintiff in the memorandum of costs, and are not included in the judgment, the failure so to claim and include them in the manner required by the statute is a waiver of such costs, and precludes a recovery thereof from the defendant.</p> <p>Id.—Application of Proceeds of Sale—Accruing Costs—Execution.— The sheriff cannot apply the proceeds of sale under execution to the payment of keeper’s fees and expenses under a writ of attachment which were not included in the cost bill and judgment, and they are not part of the accruing costs allowed under section 697 of the Code of Civil Procedure, which include only such fees and expenses as are incurred in the execution of the judgment.</p> <p>Id.—Satisfaction of Judgment.—Where it appears that, exclusive of the item of keeper’s fees under a writ of attachment constituting no part of the judgment, the property sold under the execution is sufficient, when properly applied, to satisfy the judgment, including the amount of costs claimed in the cost bill and accruing costs, the defendant is entitled to have the proceeds so applied, and to have the judgment satisfied.</p>