Opinion
Docket No. 35, January Term, 1932, Calendar No. 36,095.
Submitted June 23, 1932.
Decided June 23, 1932.
Appeal from Mason; Cutler (Hal L.), J. Submitted June 23, 1932. (Docket No. 35, January Term, 1932, Calendar No. 36,095.) Decided June 23, 1932.
Action by Sidney R. Caswell against the estate of Lydia Elizabeth Smith, deceased. Robert L. Stearns and another, executors of the estate, appealed to this court. After reversal, appellants appeal from taxation of costs. Affirmed in part, reversed in part.
A.A. Keiser and F.E. Wetmore, for plaintiff.
Matthews, Williams Von Sprecken, for defendants.
RETAXATION OF COSTS.
This is an appeal from taxation of costs. The judgment in the circuit court was summary upon a claim against the estate of a deceased person. Upon appeal the judgment was reversed. Caswell v. Stearns, 257 Mich. 461.
The estate appealed, and its representatives gave a bond for $75,000, and, under Court Rule No. 5, have taxed $750, the cost of procuring the bond.
Rule No. 5, § 7, provides:
"Whenever a bond is required by law in any action or proceeding, the reasonable cost of procuring such bond shall be part of the taxable costs of the case, unless otherwise ordered by the court."
This rule is to be strictly construed, and relates only to bonds required by law. The bond was not required by law, and only operated in stay of certification of the judgment to the probate court. No execution could have been issued. But it is contended that, by reason of the demand of plaintiff and action in support thereof, it was necessary to give the bond and plaintiff is now estopped from questioning taxation of the cost. Whether the bond was given because of unreasonable demand by plaintiff or agreement of the parties does not bring it within a bond required by law. The item for premium on the bond is disallowed.
The item of $10 for motion fee is approved.
There can be no allowance for cost of copying records in the probate court, and the item of $90 is reduced to $36, the cost of transcript of testimony.
The costs are retaxed in accord with this opinion.
Plaintiff, in this appeal, will recover $10, costs.