Abila v. Padilla

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

[390]This is an appeal from a judgment rendered by the Probate Court’ of Los Angeles county for costs. The proceeding in which the costs were incurred was a contest in relation to the probate of a will. Issues were framed and sent to the District Court for trial, and the costs accrued in that Court. The issues were tried by a jury, and a bill of costs was filed immediately after the rendition of the verdict. The verdict was certified to the Probate Court on the thirtieth of April, 1859, and on the twenty-third of May, 1859, an order was entered admitting the will to probate. The bill of costs was filed in that Court on the sixteenth of January, 1860, and the judgment appealed from was thereupon rendered for the amount.

Our opinion originally was that the bill of costs was not filed in time, and upon further consideration we are satisfied of the correctness of that opinion. We have carefully considered the points made on the rehearing, and see nothing in them inducing a conclusion different from that previously attained. Under the thirty-fifth section of the act relating to the estates of deceased persons, the Probate Court had authority to tax the costs to the unsuccessful parties; but it was necessary that they should be claimed in accordance with the provisions of the Practice Act. The bill of costs should have been filed within the statutory time after the verdict had been certified to the Probate Court, and the failure in that respect operated as a waiver. The provisions of the Practice Act are expressly made applicable in such cases; and to recover the costs of an action or proceeding, these provisions must be pursued.

Judgment reversed and cause remanded.