Leviton v. Pugsley

• Decision Date: 30 January 1932
• Citation: 55 F.2d 417
• Parties: LEVITON v. PUGSLEY.
• Court: U.S. District Court — District of Minnesota

55 F.2d 417 (1932)

LEVITON v.PUGSLEY.

District Court, D. Minnesota, Fourth Division.

January 30, 1932.

Orr, Stark, Kidder & Freeman, of St. Paul, Minn., for defendant.

Schwartz & Halpern, of Minneapolis, Minn., for sureties.

SANBORN, District Judge.

Judgment was entered on April 2, 1930.A motion for a new trial was denied on June 25, 1930.Costs in this court were taxed on July 23, 1930, at $142, and became a part of the judgment of April 2d.On September 29, 1930, the defendant appealed from the judgment, referring to it as a judgment entered July 23, 1930 — being under the impression that no judgment was entered until costs were taxed.The plaintiff, however, did not dismiss her appeal, and the defendant made a motion in the Circuit Court of Appeals to docket and dismiss under rule 16 of the rules of that court, which motion was granted.

The costs in the appellate court have been paid.The only costs for which the defendant asks judgment are those included in the original judgment.The defense urged by the sureties is that the appeal was a nullity, but it is not necessary to determine whether there is any merit in that contention.

It has been held that a cost bond on appeal covers costs in both trial and appellate courts.Fidelity & Deposit Co. v. Expanded Metal Co.(C. C. A. 3)183 F. 568;Oehring v. Fox Typewriter Co.(C. C. A. 2)266 F. 682, 12 A. L. R. 718;American Surety Co. v. United States(C. C. A. 5)239 F. 680;Pacific Coast Casualty Co. v. Harvey(C. C. A. 9)250 F. 952.

However, in Massachusetts Bonding & Ins. Co. v. Clymer Mfg. Co.(C. C. A. 10)48 F.(2d) 513, 514, the court said: "It is our conclusion that the phrase `all costs,' in both supersedeas and cost bonds, includes only the costs in the appellate court.To hold otherwise...