Leonis v. Leffingwell

McFARLAND, J.

—These two appeals were argued and submitted and will he considered together.

No. 641 is an appeal by defendant Leffingwell from an order denying her motion to have a judgment in her favor amendedj

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and No. 642 is an appeal by said Leffingwell from an order in probate rejecting said judgment as a claim against the estate of said Jean Leonis, deceased. If the order refusing to amend the judgment in No. 641 was right, as we think it was, then the order in No. 642 rejecting the judgment as a claim against the estate was also right, and both orders should" be affirmed.

The facts in No. 641 are these: The action was ejectment and was brought by Jean Leonis, since deceased, on the sixteenth day of October, 1886, against Anna G. Leffingwell, who answered, denying the averments of the complaint. Afterward, and before the action was tried, Jean Leonis died, and his executor, Michael Leonis, was substituted as plaintiff. The case was afterward tried with a jury, and on the fifteenth day of June, 1888, the jury returned a verdict in favor of the defendant. On June 16, 1888, a judgment was entered in which, after the usual recitals, including a recital of the verdict, it was adjudged that plaintiff take nothing by the action, “and that the said defendant, Anna G. Leffingwell, do have and recover from said plaintiff, Michael Leonis, executor of the last will and testament of Jean Leonis, deceased, her costs and disbursements incurred in this action, amounting to the sum of-dollars.” On the same day the defendant filed her cost bill, which on the twentieth day of July, 1888, was, on motion, taxed in the sum of six hundred and eighty-six dollars and fifty-five cents; but the costs as taxed were never entered in the judgment. The judgment stood as originally entered, without any further proceedings thereon until the ninth day of March, 1896—which was nearly eight years after the date of the entry of the judgment. On the last-named day the defendant Leffingwell moved the superior court for an order requiring the clerk of the court to enter the amount of the costs as taxed in the blank space in the judgment, and to add to the judgment the following words: “And that said judgment be and the same is hereby payable out of the estate of Jean Leonis, deceased, in the due course of administration thereof.” The court refused to grant the motion, and from' the order so refusing the appeal in No. 641 is taken.