BEGBIE v. BEGBIE

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Docket Number

S.F. No. 1293.

Attorney(S)

George A. Rankin, for Appellant. C.K. Bonestell, for Respondent.

Judges

Ralph C. Harrison

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Smart Summary

Factual and Procedural Background

A judgment of divorce was entered in the Superior Court of the City and County of San Francisco on June 25, 1897, in favor of the plaintiff (Arthur L. Begbie) and against the defendant (Alice E. Begbie). No judgment regarding costs or property issues was rendered. The defendant's motion for a new trial was denied on November 9, 1897. The defendant appealed from both the judgment and the order denying the new trial on January 4, 1898, but the appeal from the judgment was taken more than six months after its entry, rendering the judgment not open to review. Before the appeal was heard by the Supreme Court of California, the defendant died. Because the action concerned only the defendant's personal status, the suit abated upon her death, depriving the appellate court of authority to review the superior court's proceedings.

Legal Issues Presented

Whether the appellate court retains jurisdiction to review a divorce judgment and an order denying a new trial after the death of the appellant wife, given that the action solely determines her personal status.
Whether the personal representatives of the deceased appellant wife may pursue the appeal to recover costs incurred in taking the appeal despite the abatement of the action.

Arguments of the Parties

Appellant's Arguments

The appellant's personal representatives contend that the appeal should be heard so that if the superior court's judgment is found erroneous, they may recover the costs incurred in pursuing the appeal.

Respondent's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kirschner v. Dietrich, 110 Cal. 502	Death of a party in a divorce action deprives the court of power to review the judgment as to personal status.	Applied to hold that the death of the appellant wife pending appeal abated the action and deprived the appellate court of jurisdiction.
Barney v. Barney, 14 Iowa 189	Supports the principle that a divorce action abates upon death of a party.	Referenced as additional authority for abatement upon death.
Downer v. Howard, 44 Wis. 82	Supports the principle that death of a party abates divorce proceedings.	Referenced as additional authority for abatement upon death.
Maskall v. Maskall, 3 Sneed 208	Supports the principle of abatement in divorce proceedings upon death of a party.	Referenced as additional authority for abatement upon death.
Downing v. Marshall, 37 N.Y. 380	Discusses the statutory basis and history for recovery of costs.	Used to explain that right to costs arises solely by statute and is governed by the statute in effect when costs accrued.
Supervisors v. Briggs, 3 Denio 174	Costs are not taxable or recoverable until judicial determination in the action.	Supports the principle that costs are incident to judgment and cannot be awarded if the court loses jurisdiction.
Jackett v. Judd, 18 How. Pr. 385	Costs governed by statute and judicial determination.	Supports the statutory framework governing costs.
Ryder v. Robinson, 2 Me. 127	When a suit abates by death, no judgment for costs can be entered in favor of the survivor.	Applied to hold that the court cannot award costs after abatement by death.
Cutts v. Haskin, 11 Mass. 56	Same rule as in Ryder regarding abatement and costs.	Supports the principle that costs cannot be awarded after abatement.
Harvey v. Harvey, 87 Ill. 54	Upon abatement after judgment and pending appeal, each party must bear own costs.	Applied to hold that costs incurred prior to abatement must be borne by each party.
Travis v. Waters, 12 Johns. 500	Established equity rule that when suit abates without decree for costs, right to costs is extinguished unless payable from a particular fund or duty.	Supports extinguishment of costs after abatement absent special circumstances.
Johnson v. Thomas, 2 Paige 383	Equity practice disallows hearing merits after death solely to determine costs.	Applied to reject hearing appeal for purpose of awarding costs after death abates suit.

Court's Reasoning and Analysis

The court began by noting that the appeal from the divorce judgment was untimely and thus the judgment itself could not be reviewed. More critically, the death of the appellant wife before the appeal was heard caused the action to abate because it concerned only her personal status. The court relied on prior decisions, notably Kirschner v. Dietrich, to establish that the death of a party in a divorce action deprives the court of jurisdiction to review the judgment. The appellant's argument that her personal representatives should be allowed to pursue the appeal to recover costs was rejected based on statutory principles governing costs, which require a judicial determination in the underlying action. Because the action abated, the court lost all authority to adjudicate costs. The court cited multiple precedents establishing that when a suit abates by death, no judgment for costs can be rendered, and each party must bear their own expenses. Equity principles similarly preclude hearing the merits solely to determine costs after abatement. Accordingly, the court concluded it lacked jurisdiction to hear the appeal or award costs.

Holding and Implications

The appeal is dismissed.

The direct effect of this decision is that the appeal pending at the time of the appellant wife's death was abated and cannot be reviewed by the appellate court. The appellant's personal representatives cannot pursue the appeal to recover costs. No new precedent was established; the court reaffirmed existing principles that divorce actions abate upon death of a party and that costs cannot be adjudicated after such abatement. Each party must bear their own costs incurred prior to abatement.

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ARTHUR L. BEGBIE, Respondent, v. ALICE E. BEGBIE, Appellant.

HARRISON, J.

A judgment of divorce was entered in the superior court in favor of the plaintiff and against the defendant June 25, 1897. No judgment was rendered for costs, nor is any question of property involved in the action. An order denying the defendant's motion for a new trial was made and entered November 9, 1897. January 4, 1898, the defendant appealed from this judgment and order. The appeal from the judgment was taken more than six months after its entry, and for that reason the judgment is not open to review. After the transcript on appeal had been filed, and before the appeal was heard in this court, the defendant died. The action being solely for the purpose of determining her personal status it abated upon her death, and the court is deprived of all authority to review the proceedings of the superior court. We held in Kirschner v. Dietrich, 110 Cal. 502, that in an action for divorce the death of the wife subsequent to the entry of judgment deprived the superior court of all power to review its action for the purpose of determining her right to a divorce, and, upon the same principles, her death, pending an appeal from the judgment, or from an order denying a new trial, takes from the appellate court the right to review the action of the superior court. (See also, Barney v. Barney, 14 Iowa, 189; Downer v. Howard, 44 Wis. 82; Maskall v. Maskall, 3 Sneed, 208.)

The appellant does not controvert this proposition so far as the action affects her personal status as a wife, but insists that the personal representatives of the wife have the right to have the appeal heard in order that, if it shall be determined that the superior court erred, they may recover from the respondent the costs incurred by them in taking the appeal.

The right to recover costs exists solely by virtue of statutory provision (see Downing v. Marshall, 37 N.Y. 380, where a history of the subject is given); and their recovery is governed by the statute in force at the time the right to have them taxed accrued. (Supervisors v. Briggs, 3 Denio. 174; Jackett v. Judd, 18 How. Pr. 385.) Under sections 1021 et sep. of the Code of Civil Procedure, costs are not taxable or recoverable until a judicial determination is had in the action in which they have been incurred. There can be no judgment for costs except as a part of the judgment upon the issues in the action. They are but incident to the judgment, and, if the court loses power to render a judgment between the parties upon the issues before it, it is equally powerless to render a judgment for the costs incurred therein. When a suit abates by the death of a party there can be no judgment for costs in favor of the survivor. (Ryder v. Robinson, 2 Me. 127; Cutts v. Haskin, 11 Mass. 56.) The rule is the same when the action abates after judgment and pending an appeal. Upon the abatement each party must bear his own costs incurred prior thereto. (Harvey v. Harvey, 87 Ill. 54.) In Travis v. Waters, 12 Johns. 500, it was said to be "an established rule in equity that where there has been no decree for costs and the suit abates by the death of the party, the right to costs up to the time is extinguished unless the costs are payable out of a particular fund, or are connected with a duty toward the party claiming costs." In Johnson v. Thomas, 2 Paige, 383, the chancellor said: "If the whole grounds of the suit have been removed by the death of the complainant, it would be against the settled practice of the court to hear an argument of the original merits of the cause merely for the purpose of determining a question of costs between the parties."

Upon the foregoing authorities we must hold that the abatement of the suit has deprived the court of all authority to hear the appeal.

The appeal is dismissed.

Garoutte, J., and Van Dyke, J., concurred.