Bell v. Nat'l Bank of D. O. Mills & Co.

SLOSS, J.

Appeal from an order denying a motion to tax costs on appeal.

Teresa Bell applied to the court in which the estate of Thomas Bell, her deceased husband, was pending, for an order of family allowance. Nineteen creditors appeared and opposed the application. An order granting the allowance was made. From this order the creditors appealed. Eighteen of them joined in a single notice of appeal. A separate notice was-given by the nineteenth, the National Bank of D. O. Mills & Co. The appeals came up separately, that of the eighteen being numbered S. F. 4582, and that of National Bank of D. O. Mills & Co., S. F. 4583. In each case the order was by this court reversed. (153 Cal. 331, [95 Pac. 372]; 153 Cal. 345, [95 Pac. 378].) In due time the successful appellant in No. 4583 filed its memorandum of costs, claiming costs in the sum of $577, made up as follows: For printing transcript, $544.50; paid clerk of superior court for certifying to transcript, $22; paid clerk of supreme court for filing transcript, $10; fees of clerk of superior court on filing

remittitur

from supreme court, 50 cents. The respondent (appellant here) moved the court to tax the costs by striking out the items; for printing and for certifying transcript on the ground that they were excessive and unnecessary.

[531]

The position of the appellant is that she had already paid the full cost of printing and certifying the transcript in 4582; that this transcript, with the exception of the notice of appeal, is an exact duplicate of that filed by the appellant in 4583, and that there was no occasion for filing two transcripts. The affidavits bearing on these questions present various points of conflict. It is, of course, plain that in support of the order appealed from we must assume that every such conflict was resolved by the trial court in favor of the respondent. The credibility of the witnesses, whether testifying orally or by affidavit, is for the trial court. Reading the record in the light of this elementary rule, we find that the trial court had before it evidence justifying it in believing this to be the state of facts: Of the nineteen creditors who opposed Mrs. Bell’s application for family allowance, two, D. 0. Mills and National Bank of D. 0. Mills & Co., appeared and were represented by Mr. James M. Allen. The other seventeen, including one Louisa J. Thompson, were represented by Mr. J. P. Leicester. Mr. T. Z. Blakeman appeared as attorney for the petitioner, Mrs. Teresa Bell. The reason for the taking of a separate appeal by the National Bank of D. 0. Mills