The Sarah Daft Home v. Hansen

WOOD (Parker), J. Appellant, the petitioner in a proceeding to determine heirship, was awarded costs. The essential facts in the proceeding, referred to, were stated in an opinion of this court relating to that proceeding, filed this day in the Matter of the Estate of Bauer, Civil No. 13798, ante, p. 152 [138 P.2d 717]. Appellant filed a memorandum of costs in the sum of $240.50. (The total of the items listed was $235.50.) Upon a motion by respondent the court taxed costs in the sum of $50.45, and the appeal is from that order. Prior to commencing the proceeding under sections 1080, 1081 and 1082 of the Probate Code to determine heir-ship, appellant filed a petition for declaratory relief to obtain a construction of the will. In preparation for the hearing of that petition appellant duly obtained the depositions of certain witnesses. When the matter came on for hearing, respondent’s objection to proceeding in that matter, upon the ground that a petition for declaratory relief in a probate proceeding was not proper, was sustained and that matter was dismissed. Appellant then commenced the proceeding under sections 1080, 1081 and 1082 of the Probate Code. The parties entered into a written stipulation which provided among other things that, for the purpose of avoiding unnecessary expense, the depositions taken for the former proceeding could be used in the present proceeding.

Respondent moved to strike from the cost bill the items claimed as expenses in connection with the depositions and based the motion upon the grounds: (1) that costs incurred for depositions in a former action may not be taxed in a subsequent action between the parties even though the depositions were used in the subsequent action; and (2) that the costs claimed to have been incurred in connection with the depositions were excessive and unreasonable. Counsel for respondent made and filed an affidavit in support of said motion. The affidavit included the facts hereinabove stated relative to taking the depositions in the former proceeding, and stated further that respondent stipulated that said depositions taken in the former proceeding might be used in the present proceeding but there was no stipulation that the cost of taking the depositions might be charged in the present proceeding. The stipulation referred to was attached to the affidavit. The affidavit also alleged upon information and belief that the costs claimed in connection with the depositions were excessive and unreasonable. Counsel for appellant made and filed [163]an affidavit in opposition to the motion and stated that the depositions were obtained for use in the former proceeding and were not used therein but were used in the present proceeding and stated further “that the entering into of the stipulation to use said depositions in said heirship proceeding was for the purpose of avoiding the necessity of taking said depositions again. ’ ’ The affidavit in behalf of appellant also stated that the costs in connection with the depositions were reasonable.