Markham v. Ross

• Decision Date: 11 March 1884
• Citation: 73 Ga. 105
• Parties: MARKHAM v. ROSS.
• Court: Georgia Supreme Court

73 Ga. 105

MARKHAM v. ROSS.

Supreme Court of Georgia.

March 11, 1884

February Term, 1884.

1. Where a case was dismissed in this court, the dismissal operated as an affirmance of the judgment of the court below, and consequently rendered the plaintiff liable for the costs incurred in bringing the case here, together with the costs incurred in this court, upon the return of the remitter to the court below. The liability of the plaintiff in error was fixed by the judgment entered for these costs. 25 Ga. 604; 32 Id., 499.

( a. ) Although one ground of dismissal was that the transcript of the record did not reach this court within the time prescribed by law, it will not be presumed, in the absence of proof and, in spite of the judgment of the court below, that the clerk failed to perform his duty, and thereby forfeited his right to costs. The presumption is that he did his duty, until the contrary appears. Code, §3695.

( b. ) The term costs, as applied to proceedings in a court of justice includes all charges fixed by statutes, as compensation for services rendered by officers of the court in the progress of the cause. 33 Ga. 533.

( c. ) If any items of cost were improper, a motion to retax costs could have been made in the court below, upon the return of the remitter from this court.

2. If a plaintiff in error has been injured and suffered damage in consequence of the neglect of the clerk of the superior court, he may sue him personally, or upon his official bond, and recover the amount of the damage sustained. 66 Ga. 203.

Judgment affirmed.

HALL, Justice.

[A motion was made to set aside a judgment for costs entered in favor of the clerk of the superior court, for making up the record in the case of Markham vs. Huff, 72 Ga. 106. From a refusal of the motion, movant excepted.]