Land Oberoesterreich v. Gude, 66.
| Decision Date | 06 December 1937 |
| Docket Number | No. 66.,66. |
| Citation | 93 F.2d 292 |
| Parties | LAND OBEROESTERREICH v. GUDE et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Wachtell, Manheim & Grouf, of New York City (Meyer Grouf, of New York City, of counsel), for appellant.
A. Spotswood Campbell, of New York City (Karl T. Frederick and James A. Speer, both of New York City, of counsel), for appellees.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff formerly recovered a judgment against the defendants. This judgment was reversed on appeal and a new trial was ordered. The mandate of this court ordering a new trial awarded costs to the defendants in the sum of $834.42, and the order on the mandate entered in the District Court awarded additional costs of appeal in that court to the amount of $1,087.88. This is an appeal by the plaintiff from the part of the order on the mandate which granted costs to the defendants in the District Court to the amount of $1,087.88. No question is raised as to the propriety of the allowance of the item of $834.42, which was the cost of printing the transcript of the record on appeal. The additional costs taxed at $1,087.88 by the clerk of the District Court consisted of the following:
Premiums on bonds filed by the defendants
to stay execution of
plaintiff's judgment pending appeal $1,082.38
Fee of Clerk of the District Court
on filing petition for appeal 5.00
Fee of Clerk of District Court for
certification of record on appeal .50
_____________
$1,087.88
The costs of printing the transcript on appeal have by custom of long standing been taxed by the clerk of the Circuit Court of Appeals, as was done in the present case. On the other hand, the fees paid to the clerk of the District Court for filing the petition for the writ of error and for certification of the record have been taxed in the District Court. Berthold v. Burton, 169 F. 495 (C.C.). Under this practice the items of $5 and 50 cents were taxed by the clerk of the District Court and are not now questioned. These sums, as well as the item of $834.42, are clearly costs incurred in respect to the appeal, which, under settled federal procedure, do not abide the event of the trial but are taxable in favor of the party prevailing on the appeal and are payable on reversal of the judgment. Berthold v. Burton, 169 F. 495 (C.C.). The item of $1,082.38, which is the only one that is at present attacked, represents the cost of the supersedeas bond. We think this item was properly taxed as an expense of the appeal after the defendants had prevailed. Williams v. Sawyer...
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