Mississippi Power & Light Co. v. Town of Coldwater

• Decision Date: 04 May 1959
• Docket Number: No. 40824,40824
• Citation: 234 Miss. 615,112 So.2d 222
• Parties: MISSISSIPPI POWER & LIGHT COMPANY v. TOWN OF COLDWATER, Mississippi, et al.
• Court: Mississippi Supreme Court

Page 222

112 So.2d 222

234 Miss. 615

MISSISSIPPI POWER & LIGHT COMPANY v. TOWN OF COLDWATER, Mississippi, et al.

No. 40824.

Supreme Court of Mississippi.

May 4, 1959.

Fred B. Smith, Ripley, James McClure, Sardis, Byrd, Wise & Smith, Green, Green & Cheney, Jackson, for appellant.

Sumners & Hickman, Oxford, Johnson & Troutt, Senatobia, for appellees.

HOLMES, Justice.

On November 3, 1958, a final judgment was entered, 106 So.2d 375, reversing this cause and providing as to costs the following: 'It is further ordered and adjudged and decreed that the appellant do have and recover of and from the appellees all of the costs of this appeal to be taxed, etc.'

On March 14, 1959, the appellant filed in this Court a motion designated 'Motion to Re-Tax Costs,' moving the Court to add to the amount of other costs taxable the amount which accrued to the court reporter for transcribing his notes of the evidence. It was averred in said motion that the chancery clerk did not include in the transcript a statement of the costs accruing to the court reporter. The averments of the motion were meager and unsupported by briefs of counsel, and in the light of the matter as then so meagerly presented to this Court, we overruled the motion designated 'Motion to Re-Tax Costs' under the authority of Rule 19 of the Rules of this Court, providing that, 'All motions to retax costs * * * shall be filed within sixty (60) days from the entry of the final judgment in the case.'

The appellant has now filed what it terms a suggestion of error suggesting that the Court erred in overruling its aforesaid motion. This so-called suggestion of error was filed on April 21, 1959, and a copy thereof, according to the certificate of counsel appended thereto, was, on April 21, 1959, duly mailed to opposing counsel.

The following now appears from statements of facts set forth in the so-called suggestion of error under oath: The chancery clerk initially transcribed three volumes of the record and appended thereto a statement of his costs therefor aggregating $385.50. The other volumes of the record were transcribed by James O'Day, official court reporter, and at page 675 of this transcript he appended thereto his certificate as follows: 'I, James T. O'Day, official court reporter of the Chancery Court of Tate County, Mississippi, hereby certify that I am entitled to the sum of $343.50 as fees in cause No. 6605 in said court, being for transcript of 338,500 words at 10cents per folio, $338.50, and carrying charges on filing complete transcript of record with the chancery clerk, $5.00, or total of $343.50. I further certify that this amount has been paid.'

This certificate bore date of July 30, 1958. A certificate of the chancery clerk filed herein shows that this amount was paid by the appellant.

In transmitting the record to this Court, the Chancery Clerk made a statement on the transcript of the aforesaid costs accruing to him in the sum of $385.50, pursuant to Section 1193, Vol. 2, Recompiled, Mississippi Code of 1942, but did not make a statement on the transcript of the aforesaid costs accruing to the court reporter. His explanation of this omission as set forth in his certificate attached to the document filed as a suggestion of error is that since the court reporter's certificate showed that the fees due him for transcribing his notes had been paid, he was of the opinion it was not proper for him to tax and certify to the Supreme Court said costs when he forwarded to the Supreme Court the transcript of the evidence.

It is urged in the so-called suggestion of error that this Court erred in overruling the appellant's aforesaid motion designated, 'Motion to Re-tax Costs,' and that the order overruling said motion should be set aside and an order entered directing that the costs accruing to the court reporter in the sum of $343.50 be added to the other costs taxable against the appellees. We think there is merit in this contention.

While the appellants' aforesaid motion, which was overruled on April 6, 1959, was designated 'Motion to Re-tax Costs', it was not in fact a motion to re-tax costs but a motion to have said sum of $343.50 accruing to the court reporter for the transcript of the evidence added to the other costs taxable against the appellees. Said motion is in fact, and should be interpreted to be, a motion to include in the costs taxable against the appellees costs which had theretofore been omitted in taxing the bill of costs, as is provided for in Section 1595, Vol. 2, Recompiled, Mississippi Code of 1942, reading as follows:

'Costs omitted in taxing the bill of costs may be taxed at any time upon application to the court; but if the costs, as taxed before, have been paid, the party...