#### Jones *et al.*v. Jones *et al.*

Where one of the respondents died prior to the decision of an appeal for an order granting a new trial, and respondents had every reason to anticipate that the order would he affirmed, and that it would he necessary to substitute deceased’s executor for the new trial, and notwithstanding such fact and their knowledge of deceased’s death neglected to have such substitution made until after the decision of the appeal, and thereby made necessary a reargument, the costs of the reargument should not be taxed against appellants, although the order appealed from was affirmed both on the original hearing and on the reargument.

(Opinion filed July 12, 1905.)

From taxation of costs by clerk of court appellants appeal.

Modified.

For former opinions see 17 S. D. 256; 96 N. W. 88; 103 N. W. 641.

Haney, J.

The order of the lower court granting a new trial in this action was heretofore affirmed, and the cause remanded. Jones v. Jones, 17 S. D. 256, 96 N. W. 88. Subsequently, upon the application of the plaintiffs, it being then made to appear that the defendant Wilson S. Jones had died *593testate after the appeal was talren and before the decision of this court was rendered, the remittitur and record were recalled; the decision and judgment of this court were vacated; the aclion continued' against H. W. Suberá, ás executor-of tlie last will of the decedent, and Isaac S. Jones, the other defendant; a rehearing was granted; and the cause was again assigned for argument. Upon rehearing the order appealed from was again affirmed, and the action remanded, with'directions to the circuit court to grant the plaintiffs leave to serve and file new complaints against each of "the defendants upon such terms as it should deem just and 'equitable. Jones v. Jones, 19 S. D. 372, 103 N. W. 641. Thereafter the clérk of this court, upon due notice,'taxed the following items of costs and disbursements in addition-to the'costs and disbursements taxed u.p.on the first hearing: ‘-For reargument, $15; fees clerk Supreme Court additional, $20.80; express and telegraph, $ 50;” to each of which items appellants excepted, and irorn which taxation they appealed'.

It appears'from the records of this court that respondents had actual knowledge of Wilson S. Jones’ death' before the first decision of this court was rendered. The then 'pehding appeal was from an order granting a new trial in the court below. Respondents had every reason to anticipate that such order would be affirmed, and that a substitution of the executor would be necessary to enable them to further prosecute their'action. They aloné were interested in having such substitution made, and it was their duty to' have it' made with all réaso'nable dispatch. If they had properly' performed' such duty/'the costs and ‘disbursements *ñow*sought to be taxed would not have been incurred,: and we' think should not’be *594charged to the appellants. While, under the peculiar circumstances of the case, the clerk could not have acted otherwise than he did, we are of the opinion that 'all the above items should be stricken out, and that appellents should be required to pay only such costs and disbursements as were taxed under the first decision.