Reay v. Heazelton

HENSHAW, J.

In its different branches and varying phases this litigation repeatedly has been before this court. Reference may be had to

Reay v. Butler,

69 Cal. 572; 95 Cal. 206; 99 Cal. 478; 118 Cal. 113. The facts essential to this consideration are the following: In 1866 J. W. Reay, plaintiff’s assignor, commenced an -action in ejectment against Butler and Owens to recover possession of a tract of land. J. P. Treadwell filed an intervention alleging,his -ownership -of the land, and that the suit between Beay and Butler and Owens was collusive and fraudulent. He prayed for an injunction restraining plaintiff from prosecuting his action, and that his own title be quieted. Under this complaint in intervention hd prevailed in the trial court, -and Beay, the plaintiff, appealed to this court. Treadwell died pending the appeal, and in -this court Mabel Treadwell, as executrix of his estate was substituted, and her appearance by her -attorneys entered. The decision of this court

(Reay v. Butler,

69 Cal. 572) resulted in a judgment in favor of the appellant, Beay, by which judgment the intervention was ordered dismissed, and Mabel Treadwell, representative of intervenor,

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was allowed to defend the action in the trial court in the name of the defendants Owens and Butler. Upon the return of the

remittitur

plaintiff Beay filed his memorandum of costs in the sum of two thousand five hundred and ninety-seven dollars and twenty cents. Mahel Treadwell, as executrix of the will of J. P. Treadwell, deceased, applied to the superior court for its order striking out or relaxing this cost bill, and upon the court’s refusal to make the order prayed for, she appealed. In that appeal

(Reay v. Butler,

99 Cal. 477) she contended that the costs should not he taxed against her, under section 1509 of the Code of Civil Procedure, hut should have been taxed under section 1031 of the Code of Civil Procedure, and made chargeable solely upon the funds of the estate which she represented. This court declined to pass upon that question, declaring that it could not be considered upon the appeal from the court’s order, but could only be determined upon an appeal from the judgment. Meanwhile, in the principal case of