Lindy v. McChesney

California Supreme Court

Lindy v. McChesney

74 P. 1034, 141 Cal. 351, 1903 Cal. LEXIS 519

CourtCalifornia Supreme Court

DecidedDecember 21, 1903

DocketSac. No. 988.

StatusPublished

Cited by7 cases

This text of 74 P. 1034 (Lindy v. McChesney) 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

Lindy v. McChesney, 74 P. 1034, 141 Cal. 351, 1903 Cal. LEXIS 519 (Cal. 1903).

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Opinion

McFARLAND, J.—

This is a proceeding under section 1664 of the 'Code of Civil Procedure, to ascertain and declare the rights of all persons claiming as distributees of the estate of George M. Hasson, deceased. The appeal here is by Mary E. Mann from an order denying her motion to strike out from a bill of costs filed by the respondents certain charges for taking depositions, which were not used at the trial, and “to apportion the costs” in the proceeding “in accordance with the provisions” of said section 1664.

The record on the present appeal is very meager, and shows nothing as to the nature of the respective claims of the parties to the estate of said Hasson. It merely shows *353 that the judgment was in favor of the defendants who are respondents here, and against the appellant, Mann. The case, however, was here once before, and is reported in Estate of Kasson, 127 Cal. 496, and counsel for both parties refer in their briefs to the ease as there reported. If we can look into that case, we see that the appellant, Mann, claimed the entire estate as the child and sole heir of the deceased, and that the respondents claim as devisees and legatees under a will made by said Kasson, so that the contest was between appellant on the one side, and the respondents on the other; and as appellant lost, there is no reason why she should not be liable for the costs, as any other losing party in a civil action. It is true that section 1664 gives the court discretion to apportion the costs between the parties, but—if we can look into the former record—the present case does not call for such action. On the other hand, if we are confined to the record on the present appeal, there is nothing in it to show any abuse of discretion. As to the items for taking depositions, they are proper disbursements to put into a cost-bill, unless it be shown that they were unnecessary, or that for some special reason they should not be allowed,—which is not shown here. It is frequently proper and necessary for a party to have depositions taken, although afterwards the case may take such course as to make it unnecessary to use them. For instance, the opposite party may fail to make out a case, or a nonsuit may be granted, in which case the party taking the depositions would not be called upon to use them.

The order appealed from is affirmed.

Lorigan, J., and Henshaw, J., concurred.

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McFARLAND, J.—

This is a proceeding under section 1664 of the 'Code of Civil Procedure, to ascertain and declare the rights of all persons claiming as distributees of the estate of George M. Hasson, deceased. The appeal here is by Mary E. Mann from an order denying her motion to strike out from a bill of costs filed by the respondents certain charges for taking depositions, which were not used at the trial, and “to apportion the costs” in the proceeding “in accordance with the provisions” of said section 1664.

The record on the present appeal is very meager, and shows nothing as to the nature of the respective claims of the parties to the estate of said Hasson. It merely shows *353 that the judgment was in favor of the defendants who are respondents here, and against the appellant, Mann. The case, however, was here once before, and is reported in Estate of Kasson, 127 Cal. 496, and counsel for both parties refer in their briefs to the ease as there reported. If we can look into that case, we see that the appellant, Mann, claimed the entire estate as the child and sole heir of the deceased, and that the respondents claim as devisees and legatees under a will made by said Kasson, so that the contest was between appellant on the one side, and the respondents on the other; and as appellant lost, there is no reason why she should not be liable for the costs, as any other losing party in a civil action. It is true that section 1664 gives the court discretion to apportion the costs between the parties, but—if we can look into the former record—the present case does not call for such action. On the other hand, if we are confined to the record on the present appeal, there is nothing in it to show any abuse of discretion. As to the items for taking depositions, they are proper disbursements to put into a cost-bill, unless it be shown that they were unnecessary, or that for some special reason they should not be allowed,—which is not shown here. It is frequently proper and necessary for a party to have depositions taken, although afterwards the case may take such course as to make it unnecessary to use them. For instance, the opposite party may fail to make out a case, or a nonsuit may be granted, in which case the party taking the depositions would not be called upon to use them.

The order appealed from is affirmed.

Lorigan, J., and Henshaw, J., concurred.

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74 P. 1034, 141 Cal. 351, 1903 Cal. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindy-v-mcchesney-cal-1903.

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