Miller Smith, Judge of the First District, presiding. Proceeding by Andrew J. Davis and another for the probate of the will of Rachel E. Williams, deceased, contested by Dorothy Alice Williams, by her guardian, Sibyl Scott. A judgment admitting the instrument to probate, and an order refusing a new trial were reversed on appeal, and a new trial ordered at the cost of proponents.
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1916-05-11
How this case has been cited
Cited by 9 later decisions — most recently April 1953
9 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶2When this cause was before us on the first appeal (50 Mont. 142, 145 Pac. 957), the judgment and order were reversed, and a new trial ordered “at the cost of the respondents.” When appellant presented her memorandum of costs incurred on appeal, respondents moved the district court to tax all proper costs against the funds of the estate and not against them individually, and appealed from the order denying their motion.
¶3In determining the appeals as was done, the disposition of [1] ' the costs was within the discretion of this court. (Sees. 7158, 7718, Rev. Codes.) We directed that the costs of appeal be charged against the respondents. We were not requested to modify that order, and it became final when the remittitur issued. Over that order the district court had no jurisdiction except to enforce it. It might determine disputed items of cost (State ex rel. Hurley v. District Court, 27 Mont. 40, 69 Pac. 244), but it could not change or modify the order as made [2] by this court. The costs incurred in the district court became a part of the judgment, and their disposition is reviewable only on an appeal from that judgment. (Ferris v. McNally, 45 Mont. 20, 121 Pac. 889.)
