Opinion
No. 4507.
Argued September 4, 1956.
Decided October 31, 1956.
The determination of whether the plaintiff ward's interest would best be served by granting her motion seeking an order requiring her guardian to expend her funds to meet the cost' of printing her appeal to the Supreme Court from certain rulings below in habeas corpus proceedings against the guardian, after the ward had already been discharged from the custody of mental institution, was discretionary with the Trial Court.
MOTION, for an order for payment of the expense of transfer in a petition for a writ of habeas corpus instituted by Mabel A. McReel against William H. McReel, her guardian and his successor, George R. Scammon, who intervened as a party defendant.
After a decree discharging the plaintiff from the custody of the State Hospital, following which she was ultimately returned to her home in Exeter, exceptions were taken by her to the refusal of the Trial Court to make findings with respect to her sanity and to the denial of numerous motions filed by her after the decree was entered. A bill of exceptions was seasonably filed by the plaintiff and in connection therewith she moved that the defendant guardian be required to advance the expenses of transfer in the sum of $1,040. This motion was denied after hearing and plaintiff's exception thereto was reserved and transferred by Grant, J.
Sleeper Mullavey (Mr. Mullavey orally), for the plaintiff.
James C. Cleveland and George P. Cofran (Mr. Cofran orally), for George R. Scammon.
Rule 73 of Rules of the Superior Court provides in part that when "a question of law is transferred, the excepting party shall advance the expense of the transfer, which sum is to be taxed in his bill of costs if he shall prevail." 99 N.H. 620. Plaintiff's motion that the defendant, her guardian, be ordered to advance the cost of printing her appeal to this court presented the question of whether the best interest of the plaintiff would warrant an expenditure of her own funds to have her exceptions determined. See In re Estate of Ost, 211 Iowa 1085. This rested within the discretion of the Trial Court. Merchants Nat. Bank v. Sullivan, 98 N.H. 151, 152. The record shows no abuse of discretion. The Trial Court's action therefore will not be disturbed. Sweeney v. Willette, 98 N.H. 512, 513.
Exception overruled.
All concurred.