Gurnsey v. Wiltsey

BURNETT, J.

By filing in the office of the county clerk of Tehama County written grounds of opposition to the probate thereof, John H. Gurnsey, on February 27, 1922, initiated a contest of the will of Harriet A. Gurnsey, deceased. On March 8th following, respondents filed an answer to said written opposition. On April 3d the contest was set for trial on May 31, 1922, contestant then demanding a jury. The cause came on regularly for trial on said May 31st and respondents announced themselves ready to proceed. Contestant, however, asked permission to file an amended contest, but this was denied by the court. Whereupon contest

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ant moved for a dismissal of the action, and judgment of dismissal and for costs was rendered as follows:

“John H. Gurnsey having on the 27th day of February, 1922, filed in writing his contest of the Will of Harriet A. Gurnsey, deceased, and Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey, named in said Will as legatees and devisees having filed their answer to said contest, and the said contest having been set for trial for May 31, 1922, at 10 o’clock A. M. of said day, and said matter coming on for trial at said time, McCoy & Gans and W. P. Johnson, attorneys for Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey, announced that they were ready for the trial and James T. Matlock, attorney for the contestant, asked the court for leave to file an amended contest to said Will, which request the Court denied whereupon contestant by his said attorney asked the court to dismiss the contest

at contestant’s costs.

“Wherefore, it is ordered, adjudged and decreed that the said contest by John H. Gurnsey of the probate of the Will of Harriet A. Gurnsey, deceased be and the same is, dismissed, and it is ordered, adjudged and decreed, that Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey recover from said John H. Gurnsey their costs in the matter of the contest of the said Will.”

On June 2d, following, said respondents filed “memorandum of costs on Contest” of said will, the amount being $43.20. On June 6th contestant filed “notice of motion to retax costs” and also for an order “to strike out and eliminate the entire cost bill . . . upon the further ground and for the further reason that said cost bill was not prepared or served, or delivered or filed within the time required or allowed by law, or in accordance with law, or within any further time allowed by the court or adjudged thereof, or that said cost bill was prepared or served or delivered or filed before the entry of any judgment in said cause.” It was recited in said notice that “said motion will be based upon the law in such cases made and provided, and upon the minutes and records of the court, and upon the papers in said cause, and upon testimony, to be produced on said hearing.” Said motion was denied on June 26th and on July 19th contestant gave written notice of an appeal “from an order denying contestant’s motion to retax' and to strike