Wallace v. Sheldon

• Decision Date: 23 September 1898
• Citation: 76 N.W. 418,56 Neb. 55
• Parties: WALLACE ET AL. v. SHELDON ET AL.
• Court: Nebraska Supreme Court

56 Neb. 55

76 N.W. 418

WALLACE ET AL.

v.SHELDON ET AL.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1. The courts have no inherent power to award costs to a litigant. The right to costs is a statutory one.

2. The provisions of the Code on the subject of costs examined, and held to establish the following principles: (1) Generally, costs follow the judgment,--are awarded the successful and taxed to the losing party. (2) Prima facie, the unsuccessful litigant is liable for costs; and, to justify a judgment awarding him costs, either an express statute must intervene, or the circumstances be such that a judgment against him for costs would be inequitable.

3. The discretion conferred on the courts by section 623 of the Code is not an arbitrary, but a legal, one, to be exercised within the limits of legal and equitable principles.

4. The courts are not invested with the discretion to award costs or attorney fees to an unsuccessful contestant of a will simply and solely because of the fact that he undertook the contest in good faith, and at the time there existed probable cause therefor.

Error to district court, Douglas county; Ambrose, Judge.

Action by William Wallace and Lewis S. Reed to probate the alleged will of Mary E. Ramacciotti. From a judgment propounding the will, Sarah Sheldon and others appeal to the district court. Judgment for proponents. From the taxation of costs, they appeal. Reversed.

Norval, J., dissenting.Lee Helsley and Chas. Offutt, or plaintiffs in error.

O'Neill & Gilbert, for defendants in error.

RAGAN, C.

Mary E. Ramacciotti died in Douglas county, leaving a paper purporting to be her last will and testament, in and by which she appointed William Wallace and Lewis S. Reed, of the city of Omaha, her executors. These gentlemen produced said will in the county court of said county, and demanded its probate. The heirs at law of the deceased appeared in the county court, and contested the validity of the alleged will. The contest resulted in a judgment of the county court establishing the validity of the will. The contestants thereupon appealed to the district court, where another trial was had, which resulted in a judgment affirming the judgment of the county court. That judgment remains in force. The district court, upon motion of the contestants, taxed all the costs expended by them in the contest, including the fees of their counsel, to the estate of the testatrix. To review this judgment the executors have filed here a petition in error.

The power of a court to award costs to a litigant is not an inherent one. The English law courts found their right to exercise the power in legislative provisions, and it seems to have been thought necessary to specially and expressly authorize the English chancery courts to exercise the power by act of parliament. In this country the power of the courts, both federal and state, if not found in statute or contract of the parties, does not exist. The cases construing statutes on the subject of costs establish this general rule: Costs follow the judgment,--are awarded the successful party and taxed to the losing party. 5 Enc. Pl. & Prac. 106. To this general rule there are some exceptions. A familiar one is the allowance to an executor of the necessary costs and expenses incurred by him in unsuccessfully defending a contest against the will of his testator. Andrews' Ex'rs v. His Administrators, 7 Ohio St. 143. The courts justify this exception on the theory that the executor is a trustee, and, having accepted the trust, is bound to defend the trust estate. Another exception to the general rule that only the successful party may recover costs arises in cases in which an executor, devisee, or legatee of a will applies to a court for a proper construction of the instrument; and still another exception arises where property or a fund is in court, or under the control of the court, and various parties claim interests or liens upon this fund or property. In such cases the exception of allowing costs to the unsuccessful party is justified by the courts upon the theory that the proper construction of the will, or the determination by the court of the rights to the fund or property, is alike beneficial to all parties. McClary v. Stull, 44 Neb. 175, 62 N. W. 501. Section 620 of the Code of Civil Procedure provides: “Where it is not otherwise provided by this and other statutes costs shall be allowed of course to the plaintiff upon a judgment in his favor in actions for the recovery of money only or for the recovery of specific real or personal property.” Section 621 provides that a plaintiff shall not recover costs, if a justice of the peace has jurisdiction of the action, and the same is brought in any other court; nor, in certain actions, unless he recovers more than five dollars. Section 622 of the Code provides: “Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two sections.” Section 623 provides: “In other actions the court may reward and tax costs and apportion the same between the parties on the same or adverse sides as in its discretion it may think right and equitable.” The action in which the order complained of was made was not one for the recovery of money only, nor for the recovery of specific real or personal property, nor was the action one mentioned in said section 621 of the Code; but the action was one of the “other actions” named in section 623, and in which action the court was invested with the discretion to tax and apportion the costs. It will thus be seen that these provisions of the Code sustain the general rule that costs follow the...