Marcus v. Redmond

CRAIL, P. J.

Upon appeal from a judgment admitting the will of decedent to probate in a contest instituted before probate, the judgment was affirmed by this court.

(Estate of Marcus,

14 Cal. App. (2d) 254 [58 Pac. (2d) 385].) In its decision the court made no specific directions concerning costs on appeal, the general rule concerning costs being that “in all eases in which the judgment or order appealed from is affirmed, [and the order contains no directions as to the costs of appeal] the clerk will enter upon the record, and insert in the

remittitur,

a judgment that the respondent recover the costs of appeal” (Bule XXIII of the Buies for the Supreme Court and District Courts of Appeal). However, the judgment for costs was not inserted in the

remittitur.

Bespondents now move for an order recalling the

remittitur

and for issuance of a corrected

remittitur,

inserting the judgment for costs.

Upon inquiry at the clerk’s office we find that for more than a year, or since the decision in the case of

In re Estate of Erickson,

4 Cal. App. (2d) 602 [41 Pac. (2d) 939], the clerk has not been inserting in the

remittiturs

in probate cases the judgment as to costs. In the Erickson case,

supra,

the following language was used: “It has been held that by reason of the fact that the subject of costs in probate proceedings is specially provided for, the general rules concerning costs as set forth in section 1021 et seq. of the Code of Civil Procedure do not apply to probate proceedings.

(Estate of Olmstead,

120 Cal. 447, 452 [52 Pac. 804].) For like reasons the general rule XXIII should not apply in this case.”

In the trial of civil actions costs are allowed as a matter of course to the successful party upon a. judgment in his favor. (Code Civ. Proc., sec. 1032.)