Estate of Johnson

California Supreme Court

Estate of Johnson

252 P. 1052, 200 Cal. 307, 1927 Cal. LEXIS 541

CourtCalifornia Supreme Court

DecidedJanuary 27, 1927

DocketDocket No. S.F. 11752.

StatusPublished

Cited by11 cases

This text of 252 P. 1052 (Estate of Johnson) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Estate of Johnson, 252 P. 1052, 200 Cal. 307, 1927 Cal. LEXIS 541 (Cal. 1927).

Pincite

Opinion

SHENK, J.

On a contest before probate of the alleged will of the decedent the jury found for the contestant and judgment was entered accordingly, including costs to the contestant. On motion of the proponent the trial court entered an order vacating the judgment for costs. The con *308 testant appealed from said order and the order was affirmed (Estate of Johnson, 198 Cal. 469 [245 Pac. 1089]). On the going down of the remittitur the clerk of this court inserted therein the words “Respondents to recover costs on appeal,” in accordance with the rule governing ordinary civil actions. In due time the contestant filed a notice of motion in this court to recall the remittitur and to strike therefrom the provision for costs on appeal on the ground that the allowance of costs in a contest before probate must abide the final determination of the proceeding (sec. 1720, Code Civ. Proc.; Estate of Johnson, supra). The proceeding is finally determined by the affirmance of the judgment on the main appeal this day decided {Estate of Johnson, ante, p. 299 [252 Pae. 1049]), wherein this court has in the exercise of its discretion under said section 1720 directed that costs on the main appeal be paid out of the assets of the estate. On the former appeal the court did not exercise its discretion in awarding costs pursuant to said section 1720, and the provision for costs on said appeal was improperly incorporated in the remittitur. This motion is the proper remedy on behalf of the contestant to exclude from the remittitur the unauthorized provision {San Joaquin ete. Irr. Co. v. Stevinson, 165 Cal. 540 [132 Pac. 1021]). As this court has lost jurisdiction of the former appeal, we may not now exercise any discretionary power in awarding costs therein. An appropriate order may, however, be made by the trial court with reference to the costs on the former appeal in the exercise of its discretion under said section 1720.

The motion is therefore granted, and it is ordered that the remittitur issued herein by the clerk of this court on May 20, 1926, be recalled and that a correct remittitur be issued in its place nunc pro tunc omitting the words “Respondents to recover costs on appeal.”

Richards, J., Seawell, J., Waste, C. J., Curtis, J., Preston, J., and Langdon, J. concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

SHENK, J.

On a contest before probate of the alleged will of the decedent the jury found for the contestant and judgment was entered accordingly, including costs to the contestant. On motion of the proponent the trial court entered an order vacating the judgment for costs. The con *308 testant appealed from said order and the order was affirmed (Estate of Johnson, 198 Cal. 469 [245 Pac. 1089]). On the going down of the remittitur the clerk of this court inserted therein the words “Respondents to recover costs on appeal,” in accordance with the rule governing ordinary civil actions. In due time the contestant filed a notice of motion in this court to recall the remittitur and to strike therefrom the provision for costs on appeal on the ground that the allowance of costs in a contest before probate must abide the final determination of the proceeding (sec. 1720, Code Civ. Proc.; Estate of Johnson, supra). The proceeding is finally determined by the affirmance of the judgment on the main appeal this day decided {Estate of Johnson, ante, p. 299 [252 Pae. 1049]), wherein this court has in the exercise of its discretion under said section 1720 directed that costs on the main appeal be paid out of the assets of the estate. On the former appeal the court did not exercise its discretion in awarding costs pursuant to said section 1720, and the provision for costs on said appeal was improperly incorporated in the remittitur. This motion is the proper remedy on behalf of the contestant to exclude from the remittitur the unauthorized provision {San Joaquin ete. Irr. Co. v. Stevinson, 165 Cal. 540 [132 Pac. 1021]). As this court has lost jurisdiction of the former appeal, we may not now exercise any discretionary power in awarding costs therein. An appropriate order may, however, be made by the trial court with reference to the costs on the former appeal in the exercise of its discretion under said section 1720.

The motion is therefore granted, and it is ordered that the remittitur issued herein by the clerk of this court on May 20, 1926, be recalled and that a correct remittitur be issued in its place nunc pro tunc omitting the words “Respondents to recover costs on appeal.”

Richards, J., Seawell, J., Waste, C. J., Curtis, J., Preston, J., and Langdon, J. concurred.

Cite This Page — Counsel Stack

Bluebook (online)

252 P. 1052, 200 Cal. 307, 1927 Cal. LEXIS 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-johnson-cal-1927.

Opinion

Related

Cite This Page — Counsel Stack