City Of Richmond v. Henrico County

• Decision Date: 13 January 1947
• Citation: 185 Va. 859,41 S.E.2d 35
• Parties: CITY OF RICHMOND . v. HENRICO COUNTY et al.
• Court: Virginia Supreme Court

41 S.E.2d 35

185 Va. 859

CITY OF RICHMOND .

v.HENRICO COUNTY et al.

Supreme Court of Appeals of Virginia.

Jan. 13, 1947.

[COPYRIGHT MATERAIL OMITTED]

HOLT, C.J., dissenting.

On rehearing.

Former opinion and judgment modified and cause remanded.

For former opinion, see 185 Va. 176, 37 S.E.2d 873.

Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON and SPRATLEY, JJ.

Horace H. Edwards, J. E. Drinard and Olin A. Rogers, all of Richmond, for appellant.

Denny, Valentine & Davenport, McGuire, Eggleston, Bocock & Woods and William H. King, all of Richmond, for appellees.

HUDGINS, Justice.

The rehearing, granted to the judgment entered on April 22, 1946, pursuant to the principles announced in the opinion pub lished in 185 Va. 176, 37 S.E.2d 873, was limited to the question of the costs incurred in this court and in the lower court.

The allowance of costs depends entirely upon statute, as no costs were allowed at common law. 4 Minor's Institutes, 2d Ed., p. 874. Chapter 185 of the Code of 1849, pages 704--707, contains sixteeen sections covering the allowance of costs both in the trial and in the appellate courts. Section 8 of this chapter is the pertinent section controlling the allowance of costs in the trial court and is as follows: "Except where it is otherwise provided, the party for whom final judgment is given in any action, or in a motion for judgment for money, whether he be plaintiff or defendant, shall recover his costs against the opposite party; * * *." This provision is still the law. It was carried in section 3545 of the Code of 1887, and is now a part of section 3525 of the Code of 1919.

This court has consistently held that the provisions of this section are applicable to the costs in the trial court and not to costs in this court.

Plaintiff, in Scott v. Doughty, 130 Va. 523, 107 S.E. 729, brought an action against Doughty to recover the sum of $406.70, the amount of costs expended by him in this court on two appeals in the same case. Whealton & Wiskerd v. Doughty, 112 Va. 649, 72 S.E. 112, and 116 Va. 566, 82 S.E. 94. Doughty contended that she was not liable to Scott for any part of the costs expended by him on appeal because, on the third appeal of the same case, this court affirmed the judgment awarded her by the trial court. Scott v. Doughty, 124 Va. 358, 97 S.E. 802. It was held that Scott, under the provisions of Code, sec. 3528, was entitled to recover the amount of costs expended by him on the two successful appeals of the same case, and that, although two judgments in her favor in the same case had been reversed by this court, Doughty was entitled to recover from the plaintiff the total costs expended by her in the three trials of the same case under the provisions of Code, sec. 3525. The amount of the final judgment awarded Scott was the difference between the costs of the three trials and $406.70, the amount of his costsexpended on the two appeals. In other words, the party who ultimately prevails in the trial court is entitled to recover the total costs incurred in that court.

The mandatory language of the statute and the former positive decisions of this court establish one incontrovertible fact-- that the award of costs in the lower court and the award of costs in this court are two separate and distinct matters and are controlled by different statutes.¹

The statute controlling the allowance of costs in this court, as it appeared in the Code of 1819, read: "A clear and concise state of the case of each party in an appeal, writ of error or supersedeas with the points intended to be insisted on, signed by his counsel, and printed (the expense whereof shall be taxed in the bill of costs), shall be delivered to every judge, time enough before the hearing for his consideration; but the court, if this be neglected, may nevertheless hear and determine the matter, and may give such decree, or judgment, if it be affirmed, or reversed in the whole, as a court, whose error is sought to be corrected, ought to have given (affirming in those cases, where the voices on both sides shall have been equal) with an allowance of the costs of appeal to the party prevailing to be certified to the court from which the matter was removed; who shall enter it as their own and award execution thereupon accordingly." Revised Code of 1819, vol. 1, pp. 194, 195.

The provisions of this act regarding costs were condensed and codified in the Code of 1849, ch. 185, sees. 10 and 11, to read as follows:

"10. The laws of costs shall not be interpreted as penal laws; nor shall any thing in this chapter take away or abridge the discretion of a court of equity over the subject of costs, except as follows:

"11. In every case in an appellate court, costs shall be recovered in such court by the party substantially prevailing."

These sections, as thus codified, have remained unchanged. See Code of 1887, sees. 3547 and 3548; Code of 1919 sees. 3527 and 3528. They apply to suits in chancery as well as to actions at law.

In Ficklen v. City of Danville, 146 Va. 426, 435, 131 S.E. 689, 691, 132 S.E. 705, which was a suit in equity, Judge Crump, speaking for the Special Court of Appeals, said: "The allowance of costs depends entirely upon statute; no costs being allowed in any case at common law. Section 3528 of the Code of Virginia provides in mandatory terms that, in every case in an appellate court, costs shall be recovered by the party substantially prevailing. No other provision being made for the recovery of costs, they can only be allowed in favor of either party in this court, in cases in which there is an adjudication, and then to the party 'substantially prevailing.' Scott v. Doughty, 130 Va. 523, 107 S.E. 729."

This statutory distinction governing costs in the trial court and in the appellate court is emphasized in the statute providing the procedure for cities and towns to enlarge their corporate limits. The pertinent language is found in Code 1942 (Michie), sec. 2957, which provides: "Whenever a city or town asks for the annexation of any such territory, said fees and all other court costs shall be paid by said city or town except such as may be incurred on appeal, when the court shall determine by whom said appellate costs may be paid." This mandate is repeated in section 2961, which allows an appeal from the final judgment of the annexation court and provides that "the costs in the Supreme Court of Appeals shall be awarded to the party substantially prevailing." When we awarded the costs in the case of Henrico County, Windsor Farms, Inc., v. City of Richmond, 177 Va. 754, 15 S.E. 2d 309, we were simply following the mandate of the statute. But, because we held that the city of Richmond substantially prevailed and therefore was entitled to recover its costs expended in this court, such holding did not relieve the city of its obligation to pay all costs incurred in the lower court.

These were the well settled rules governing the allowance of costs when the General Assembly, in 1940, adopted chapter 390, amending and enlarging the statute pertaining to the annexation of territory by cities with a population in excess of 150,-000. This act is carried in Code 1942 (Michie) as section 5222k, and provides, among other things, that when the works of public improvement or utility have been installed in any subdivision of the county according to plans and specifications approved by certain city officials, and subsequently such subdivision is annexed to the city, all such improvements and utilities shall become the property of the city free and clear of all liens and encumbrances. It is also provided that such city shall pay the owners the "fair value" of such improvements and utilities "as of the effective date of such annexation."

The city and the owners of such improvements and utilities are given six months in which to reach an agreement upon the fair cash value. In the event that no such agreement is made within that time, the owners are given the right to file a petition in the pending annexation cause to recover from the city the fair cash value of such improvements and utilities. Upon the filing of such petition, the three-judge annexation court is authorized, as in condemnation proceedings, to appoint appraisers who shall determine and report to the court the fair cash value of the properties involved. The court may increase, decrease or affirm the award of the appraisers. The pertinent provision of this act governing the allowance of costs is as follows: "Said appraisers shall receive such compensation as the court of their appointment shall fix, which, together with all other costs incident to such proceedings, shall be borne as such court in its discretion may determine."

No agreement was reached within the six months. Windsor Farms, Inc., and the Grove Improvement Corporation, acting under the authority of the statute, filed their petition in the case of City of Richmond v. County of Henrico. Among other things, the Grove Improvement Corporation, in paragraph four of its petition, alleged that it "caused to be constructed approximately 8, 825 feet of water lines and a like amount of gas lines, the approximate fair value of which was as of December 31, 1941 (the date of the final order in the annexation proceedings), about $36,-000.00, and 9, 368 feet of sewer lines, the approximate fair value of which was as of December 31, 1941, about $17,000.00, and all of which said works are public im-provements or utilities and are of that nature which the City of Richmond had theretofore owned or operated within its limits, and nearly all of which are located in or under streets or alleys made a part of said City by the said annexation decree of this Court which became effective at midnight on December 31, 1941, and that on that date all of said public improvements or utilities became the property of said City free of all liens and encumbrances, and that it owes your petitioner therefor with interest from said last named...