WILLIAM BROWN, Appellant, v. ELIZA DELAVAU, Respondent

[Department Two. April 6, 1883.] WILLIAM BROWN, Appellant, v. ELIZA DELAVAU, Respondent. Pbactice—Costs in Injunction Suits Wheee Judgment is Less Than Thbee Hundeed Dollaes. —-In an action to enjoin the continuation of a wrongful act, and for damages already sustained thereby, a judgment for fifty dollars damages, but for no part of the equitable relief demanded, will not carry costs. Id.—Exception to Obdebs Made Afteb Judgment. —The appellate court will not review an order made after judgment unless it is excepted to. Appeal from an order of the Superior Court of the city and county of San Francisco striking out a cost bill. The facts are stated in the opinion of the court J. B. Hart, for Appellant. C. H. Parker, for Respondent. [MAJORITY — Per Curiam.] Per Curiam. The plaintiff in his complaint demanded that the defendant be enjoined from throwing earth upon her land' in such a manner that it would fall upon the plaintiff’s land, and a judgment for five hundred dollars against the defendant for damages already sustained by the plaintiff by reason of the throwing of earth upon his land by the defendant. He recovered judgment for fifty dollars damages, but for no part of the equitable relief demanded in the complaint. He filed a bill of costs, which the court on motion of defendant ordered stricken from the files. From that order this appeal is taken. The case as presented by the record is not distinguishable in principle from Himes v. Johnson, 61 Cal. 259, in which we said: “ The plaintiff recovered a judgment for fifty dollars damages and the costs of the action. We think that the court erred in giving the plaintiff a judgment for costs. It is true that the plaintiff prayed an injunction, but this was denied, and the action thereafter should be treated as one for damages only. It is quite clear that a judgment for fifty dollars damages in such an action would not carry costs.” Besides, it does not appear that the order was excepted to, and we cannot review an order made after judgment unless it is. (Code Civ. Proc. §§ 646, 647, 651.) Order affirmed.