Meridian Coca Cola Co. v. Watson
| Decision Date | 02 January 1933 |
| Docket Number | 30302 |
| Citation | 145 So. 344,164 Miss. 389 |
| Court | Mississippi Supreme Court |
| Parties | MERIDIAN COCA COLA CO. et al. v. WATSON |
APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.
Action by J. B. Watson against the Meridian Coca Cola Company and another, in which a judgment for plaintiff was reversed (161 Miss. 108, 134 So. 824) and the cause remanded, and in which a judgment for plaintiff, recovered on a second trial, was affirmed (141 So. 286). From an order overruling named defendant's motion to retax the costs so that the costs of the first trial should be charged against plaintiff defendant appeals. Affirmed. See, also, 138 So. 407.
Affirmed.
Gilbert & Cameron, of Meridian, for appellant.
In two cases of reversal and entry of judgments final in this court, we find the court correctly taxing all costs of appeal and lower court against losing party.
Boyd v. Applewhite, 123 Miss. 185, 121 Miss. 879; Specialty Co. v. Price, 146 Miss. 215.
The condition of a supersedeas appeal bond is:
"That the appellant will satisfy the judgment or decree complained of and also such final judgment as may be made in the cause, and all costs, if the same is affirmed."
The bond referred to covers all costs. This being true, does it not follow that nothing short of an affirmance can make the appellant liable for the costs of appeal as well as costs of lower court.
A case having been reversed and remanded with mandate for a new trial, it was held erroneous to give judgment, against the party to whom it was granted for costs of the former trial.
Garrison v. Singleton, 35 Ky. (5 Dana.) 100; McCarthy v. Havis, 23 Fla. 508, 2 So. 819; Robinson v. Ranson, 12 Ind. 474; Car v. Gomez, 9 Wendel 649; Estus v. Baldwin, 9 How. Prac. 80; Kummer v. Christopher & East Tenth St. R. Co. (Com. Pl.), 3, Misc. 100, 22 N.Y.S. 698; McMasters v. Blair, 31 Pa. St. (7 Casey) 467; Gallup Electric Light Co. v. Pacific Impr. Co., 16 N.M. 279, 117 P. 845.
In case where plaintiff prevailed in first trial and judgment reversed and plaintiff again had judgment and on appeal same was affirmed, the costs of first trial and of appeal were deducted from judgment.
Briglis v. Holt & Jeffry, 91 Wash. 644, 158 P. 347.
A reversal will ordinarily authorize an award of costs made in the court below as well as costs of appeal to the appellant, whether the judgment on appeal be final or not.
Eigeman v. Kerstein, 72 Ind. 31; Winton v. Conner, 24 Ind. 107; Doyle v. Kiser, 8 Ind. 396; Sellers v. Zimmerman, 21 Md. 355; Doub v. Mason, 5 Md. 612; Beatty v. Davis, 9 Gill 211; Calwell v. Boyer, 8 Gill 7 J. 136.
Where judgment is reversed and the same, party prevails on the new trial the court will not permit him to tax the costs of this first trial.
Havard v. Davis, Browns, 334.
Nate S. Williamson, of Meridian, for appellee.
Where the unsuccessful party to an action, after securing a reversal for error and a new trial on appeal, and having the costs of the appellate court taxed against the appellee, is unsuccessful on the new trial, the costs of the trial court on the first trial as well as on the second should be taxed against him. Where, however, he is successful on the new trial, the costs of the first trial as well as of the second one should be taxed against the opposing party. But where the appellate court upon reversing the judgment of the trial court, renders final judgment on the merits instead of remanding the cause for a new trial, it is proper to allow the appellant the costs of the trial in the lower court.
7 R. C. L., page 804, sec. 33.
In many jurisdictions if a judment is reversed and remanded for a new trial, costs of the former trial will abide the event of the suit.
15 C. J., page 246, section 608; Berthold v. Burton, 169 F. 495.
Where on exception filed a new trial was granted after an execution had issued against defendant and been satisfied, and on the second trial plaintiff obtained judgment for a less amount than had been paid on the execution he was nevertheless held entitled to costs.
Framingham Mfg. Co. v. Barnard, 2 Pick (Mass.) 532.
The discretion given by the statutes in the trial court in the matter of taxation of costs will not be interfered with.
Appellant will be hereinafter referred to as the plaintiff, and appellant as the defendant. Plaintiff brought suit against the defendant for damages because of the death of plaintiff's wife, charged to have been due to defendant's negligence. Plaintiff recovered judgment in the circuit court for twenty thousand dollars and costs. The defendant appealed to the Supreme Court, and there the judgment was reversed and the cause remanded for a new trial. 134 So. 824. On the second trial the plaintiff recovered another judgment in the same amount, and on the second appeal to the Supreme Court the judgment was affirmed. 141 So. 286. When the defendant came to make payment of the judgment and costs, it objected to the charge against it of the costs of the first trial in the circuit court, and presented its motion in the circuit court, to retax the costs, so that the costs of the first trial in the circuit court should be charged against the plaintiff and not against the defendant. The motion was by the court overruled, and defendant appeals.
The sole question for decision is this:...
To continue reading
Request your trial
- Neill v. Wells
-
Martin v. Reikes
...and judgments thereon in the progress of suits, as heretofore practiced in said courts. They also rely on Meridian Coca Cola Co. v. Watson, 164 Miss. 389, 145 So. 344 (1933), for support. In Watson, this Court The sole question for decision is this: Who is legally liable for the costs incur......