Moore v. Blackwell

• Decision Date: 26 January 1928
• Docket Number: 4 Div. 360
• Citation: 217 Ala. 215,115 So. 248
• Parties: MOORE v. BLACKWELL.
• Court: Alabama Supreme Court

115 So. 248

217 Ala. 215

MOORE v. BLACKWELL.

4 Div. 360

Supreme Court of Alabama

January 26, 1928

Appeal from Circuit Court, Crenshaw County; Arthur E. Gamble, Judge.

Action in trespass by Fonza Blackwell against E.H. Moore and others. Judgment for plaintiff against defendant named. The named defendant's motion to retax the costs was denied, and he appeals. Affirmed.

Powell & Hamilton, of Greenville, for appellant.

W.H Stoddard, of Luverne, for appellee.

GARDNER J.

The original suit was in trespass to realty, brought by appellee against appellant and two other individuals. Plaintiff and defendant E.H. Moore (appellant here) owned lands adjoining and the cutting of certain pine timber over the line on plaintiff's land gave rise to this litigation. The actual cutting seems to have been done by the other individual defendants, but it was made to appear upon the trial that what was done was under the express written direction of defendant E.H. Moore. The cause was tried before a jury resulting in a judgment for plaintiff against defendant E.H Moore for the sum of $75, and in favor of the other defendants.

In the judgment rendered the costs incurred at the instance of these defendants, in favor of whom the verdict was rendered, were taxed against plaintiff, and the remainder of the costs taxed against said E.H. Moore. Moore paid the judgment of $75, and made a motion to retax the costs which amounted to considerably more than the sum of recovery, the larger portion of which was witness fees, summoned at plaintiff's instance. The motion was duly considered upon original testimony, and some additional testimony offered, resulting in an order denying the same, and from this judgment on the motion defendant E.H. Moore prosecutes this appeal.

It is insisted by counsel for appellant that the defendants against whom plaintiff failed were entitled to recover their aliquot proportion of the whole costs taxed against the plaintiff, citing Handley v. Lawley, 90 Ala. 527, 8 So. 101. But this authority was under the statutory provision, as found in section 1331, Code of 1896, which has been changed, and as section 7228, Code of 1923, now provides that:

"When a plaintiff fails to recover against all of the defendants, the defendants against whom he fails to recover are entitled to have their costs taxed against the plaintiff."

We cannot agree with the argument that this provision is in addition to the former as to a recovery of aliquot proportion. The latter provision was omitted entirely, and the language above quoted stands alone and is to be given its plain and unmistakable meaning. The judgment of the court in this respect followed the statute, and is correct.

Prior to the amendatory act of September 16, 1915, p. 598, the successful party was entitled to full costs, unless in cases otherwise directed by law. The above act was passed, however with the evident purpose of relieving against an unyielding rule and to leave much to the judgment and discretion of the trial court. Such is the language of the act as now...