A. PACKARD, Respondent, v. JOHN D. WILSON et al., Appellants

[No. 9459. Department Two. March 1, 1887.] A. PACKARD, Respondent, v. JOHN D. WILSON et al., Appellants. Costs—Percentage—Litigated Case—Act oe February 9, 1866. — Section 6 of the act of February 9, 1866, •— conceding it to be still in force, — providing that the prevailing party in litigated cases in the city and county of San Francisco shall be entitled as costs to a percentage of five per cent on the amount recovered, applies to an action to foreclose a lien on personal property, in which judgment is entered in favor of the plaintiff on a demurrer to the complaint. Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing to retax costs. The action was brought to foreclose a lien on a promissory note. The defendants demurred to the complaint, and their demurrer being overruled, final judgment was rendered in favor of the plaintiff for $7,053.61, and for the sale of the note and the application of the proceeds in payment thereof. The plaintiff filed a cost-bill, one of the items of which was as follows: “ Percentage allowed by law on judgment of $7,053.61, $100.” The defendants thereupon moved to have the cost-bill taxed, and to strike therefrom the item of one hundred dollars, on the grounds,—1. That the action was brought to foreclose a lien, and was not an action wherein percentage is allowed by law; and 2. That no issue of fact was raised in the action, and that the same was not a litigated case. The court denied the motion. Section 6 of the act of February 9, 1866, regulating fees in the city and county of San Francisco, provides “ that the prevailing party shall be allowed five per cent on the amount recovered, together with any sum by him so paid in a cause as costs and disbursements, to be included in the judgment against the adverse party; provided, said five per cent shall be allowed only in litigated cases; and provided further, that said percentage shall not be allowed to exceed the sum of one hundred dollars on any one judgment.” The. further facts are stated in the opinion. William & George Leviston, for Appellants. J. T. Fleming, and A. Packard, for Respondent. [MAJORITY — The Court.] The Court. — The complaint is sufficient. The case was litigated on demurrer, and the sixth section of the statute of February 9, 1866 (Stats. 1865-66, p. 68), applies to it. We think it proper to say that it was conceded on the argument by both parties that the statute above referred to is still in force. We decide the case on this concession, and hold nothing as to whether the statute is in force or not. Judgment and order affirmed.