Palm Beach Tire Co., Inc. v. Sun Oil Co.
| Decision Date | 25 June 1934 |
| Citation | 155 So. 754,115 Fla. 621 |
| Court | Florida Supreme Court |
| Parties | PALM BEACH TIRE CO., Inc. v. SUN OIL CO. |
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Proceeding between the Palm Beach Tire Company, Incorporated, and the Sun Oil Company. To review the judgment rendered, the tire company brings error, and the oil company files a cross writ of error.
Writs of error dismissed.
COUNSEL M. D. Carmichael, of West Palm Beach, for plaintiff in error.
Evans Mershon & Sawyer, Thos. McE. Johnston, O. B. Simmons, Jr. and Atwood Dunwody, all of Maimi, for defendant in error.
In this case the court is advised by attorneys of record that the entire controversy between the parties has been settled. Therefore, the questions involved have become moot.
Counsel for defendant in error asks that the court render a written opinion enunciating the law on the questions presented by cross writ of error. Before those questions could become material the court should first determine that the main judgment should be affirmed. If the entire controversy has been settled between the parties, there is nothing for this court to determine.
As there is writ of error and cross writ of error, both will be dismissed and the costs taxed equally against the parties without prejudice as to the enforcement of any agreement which may have been entered into between the parties.
It is so ordered.
I do not think a cross writ of error to the principal judgment a proper method to review the refusal of the trial judge to allow certain items claimed as costs to be included in the principal judgment in a court at law.
Costs are collateral to the judgment itself. It is the plain mandatory duty of the clerk or judge to tax and allow all legally reasonable costs. If this duty is not performed a writ of mandamus is the remedy for compelling the inclusion in the judgment of the proper amount of recoverable costs. But a writ of error to a judgment for costs alone does not lie, either as a direct writ of error or as a cross writ of error. Haynes v. Bramlett, 46 Fla. 348, 35 So. 3; Blanton v. West Coast R. Co., 58 Fla. 169, 50 So 945. Under section 4673, Comp. Gen. Laws, section 2949, Rev. Gen. St., taxation of costs may be done by the clerk. The legality of the clerk's action in...
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