Estate of Gallo

This is an appeal from an order taxing costs. Plaintiffs instituted a proceeding to revoke the probate of the will of Annie Gallo, deceased. At the close of plaintiff’s case a nonsuit was granted. On appeal the judgment of nonsuit was reversed. ( 61 Cal. App. 163 [ 214 Pac. 496 ].) For the purposes of that appeal plaintiffs ordered a transcript of testimony from the reporter at an expense of $282.60. Upon the return of the remittitur, in due time, plaintiffs filed their bill of costs, including this item for reporter’s transcript. On defendant’s motion to tax costs this item was disallowed. From this order the plaintiffs appealed. The bill of exceptions indicates that the plaintiffs procured this transcript of testimony without obtaining any order of court therefor.

A successful appellant is entitled to costs on reversal of the judgment. (Sec. 1027, Code Civ. Proc.; Robinett v. Brown, 167 Cal. 735 [ 141 Pac. 368 ].) The right of the prevailing party to recover costs is purely statutory. No costs may be recovered except when they are allowed by statute. (Turner v. East Side Canal & Irr. Co., 177 Cal. 570 [ 171 Pac. 299 ].)

Section 1027 of the Code of Civil Procedure provides that…