Exchange National Bank of Tulsa v. Ransom

STEPHENS (Jess E.), J. pro tem.

This is an appeal from a portion of a judgment after hearing on a third party The appeal is “from the particular portion of said judgment which orders and decrees that each party to said proceeding pay its own costs therein incurred.”

Pursuant to writ of execution issued upon a judgment secured by respondent against G. M. Ransom, the sheriff levied upon and seized the contents of a safe deposit box consisting principally of a number of cashier’s cheeks and American Express travelers’ cheeks. Grace Carver Ransom filed a third party claim, asserting her title thereto, and a hearing pursuant to Code of Civil Procedure, 689. ¿Following such hearing the trial court determined that all of said property was the sole and separate property of said Grace Carver Ransom except one cashier’s check in the sum of $225, which latter was ordered delivered to the judgment creditor pursuant to the writ. The judgment provided: “each party to pay its and their costs herein incurred.”

Appellant (third party claimant) contends that, being the successful party in the proceeding, she is entitled to her costs as a matter of course, and that by virtue of section 689 of the Code of Civil Procedure she is entitled to counsel fees as well.

Section 689 of the Code of Civil Procedure provides a complete procedure for the filing of a third party claim if personal property is levied upon, for hearing in the court in which the action is pending or from which the writ issued for the purpose of determining title to the property in question, and for the type of judgment to be rendered, no findings being required. It further provides for immediate release of the property upon the filing of such claim unless the person in whose favor the writ runs files with the officer holding the property an undertaking in a sum equal to double the value of the property levied upon. In this connection the section provides that “Such undertaking shall be made in favor of and shall indemnify such third person against loss, liability, dam

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ages, costs arid counsel fees, by reason of such seizing, taking, withholding or sale of such property by such officer.” The section contains no other reference to costs or counsel fees. We must, therefore, look to the general provision governing the allowance of costs, to wit, section 1032 of the Code of Civil Procedure. The portion of this section which it is necessary to consider herein provides as follows: “In the superior court, except as otherwise expressly provided, costs are allowed of course: (a) To plaintiff upon a judgment in his favor ... in an action to recover the possession of personal property; ... in a special proceeding; ... (c) In other actions than those mentioned in this section, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court. ...”