D. J. OULLAHAN, Appellant, v. JAMES A. MORRISSEY, Respondent

[No. 11393. In Bank. August 30, 1887.] D. J. OULLAHAN, Appellant, v. JAMES A. MORRISSEY, Respondent. Appeal — Judgment by Consent—Dismissal—Costs—Jurisdiction.— Where an action for libel is dismissed upon the motion of the plaintiff, and judgment is accordingly rendered in favor of the defendant for his costs, the plaintiff cannot appeal therefrom, except as to the portion of the judgment awarding costs; and the Supreme Court has no jurisdiction ' of such an appeal, when the amount of the costs is less than three hundred dollars. Appeal from a judgment of the Superior Court of San Joaquin County. The action was brought to recover damages for an alleged libel. The complaint was filed without the plaintiff giving any undertaking for costs, as required by the act of March 23, 1872. The defendant moved to dismiss the case on that ground, and pending the motion the plaintiff dismissed it himself. The defendant thereupon filed a cost bill containing an item of one hundred dollars as attorneys’ fees, as provided by section 7 of the act of March 23, 1872. The plaintiff then moved to retax the costs. The motion was denied, and judgment entered in favor of the defendant for his costs. The further facts are stated in the opinion of the court. D. S. Terry, F. T. Baldwin, and J. C. Campbell, for Appellant. James H. Budd, James A. Louttit, and W. L. Dudley, for Respondent. [MAJORITY — The Court.] The Court. — The plaintiff, having consented to the entry of the judgment against himself, cannot appeal from it, or if he can, can be heard only as to that portion to which he did not consent. That in this case is at the most the demand for costs, which, being less than three hundred dollars, does not give this court jurisdiction. The appeal must be dismissed. So ordered.' McKinstry, J., expressed no opinion.