In Re the Estate of Prager

THE COURT.

Upon an appeal by one of the devisees under the will of Charles Prager, deceased, from the decree of settlement of final account and of distribution, the decree was affirmed by this court.

(Estate of Prager,

166 Cal. 450, [137 Pac. 37].) The opinion was filed December 3, 1913, and became final at the expiration of thirty days from that date. Thereupon the clerk of this court issued to the court below a

remittitur.

This document did not include any judgment in favor of respondent for her costs on the appeal. She now moves for the recall of the remittitur and for its correction by the insertion therein of a judgment for such costs.

[738]

The action of the clerk was in accord with the rules of this court. Rule XXIII reads as follows: “In civil cases the clerk shall not be required to remit the final papers until the costs •are paid. In all eases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification 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 appellant recover the costs of appeal.” The rule, it will be observed, directs the incorporation of a judgment for costs only where this court has modified or reversed the judgment or order appealed from. The clerk is not directed to include judgment for costs where the appeal has resulted in an affirmance.

The latest revision of our rules became effective on March 18, 1912. At that time section 1027 of the Code of Civil Procedure read as follows: “In the following cases the costs of appeal is (are) in the discretion of the court:

“1. When a new trial is ordered;

“2. When a judgment is modified.”

There was then no statutory definition of items properly chargeable as costs of appeal. Rule XIII of this court provided, as it does now, that the expense of printing transcripts or other papers constituting the record and required to be printed, should be allowed as costs. The clerk of the court was, and is, required by section 752 of the Political Code to collect a fee for filing the transcript in a civil case, this fee being in full for all services rendered up to the rendering of the judgment, or the issuing of the