Stepp v. Nat'l Life & Maturity Ass'n

• Decision Date: 04 April 1894
• Citation: 41 S.C. 206,19 S.E. 490
• Court: South Carolina Supreme Court
• Parties: STEPP v. NATIONAL LIFE & MATURITY ASS'N. LOEB et al. v. MANN.

19 S.E. 490

41 S.C. 206

STEPP

v.NATIONAL LIFE & MATURITY ASS'N.

LOEB et al.

v.MANN.

Supreme Court of South Carolina.

April 4, 1894.

Costs on Appeal.

Where appellant contends for a new trial ab initio on grounds which are not sustained, and the judgment is merely reversed unless respondent grants a remittitur, which he does, appellant is not the prevailing party, and respondent is entitled to costs on the appeal.

Appeal from common pleas circuit court of Greenville county; James P. Izlar, Judge.

Actions by Mallie U. Stepp against the National Life & Maturity Association of Washington, D. C, and by Loeb Bros. & Co. against William D. Mann. Prom judgments for Stepp and for Mann the association and Loeb Bros. & Co. appeal. Judgment in the first case affirmed, and in the second case reversed.

Isaac M. Bryan, for appellants.

Benet, McCullough & Parker, for respondents.

McIVER, C. J. These two cases, Involving the same point, were heard and will be considered together, although, when heard on circuit by two different circuit judges, they reached different conclusions upon the question presented by this appeal. In both of these cases, when heard on the original appeals, this court rendered judgment that the judgment of the circuit court be reversed, unless the respondents therein would, within a prescribed time, enter upon the record a remittitur of a specified amount of money, in which event the judgments be afflimed. In both instances the remittiturs were duly entered, and the only question now presented is, which of the parties are entitled to the costs of the original appeals? In the case first named, his honor, Judge Izlar, held that the plaintiff was entitled to the costs of the original appeal; while, in the other case, his honor, Judge Wallace, held that the defendant was entitled to such costs. In the case of Huff v. Watkins, 25 S. C. 243, it was held that the defendant, having succeeded in reversing the judgment appealed from, was entitled to the appeal costs; and the same doctrine practically was held in Cleveland v. Cohrs, 13 S. C. 397, and in Sease v. Dobson, 36 S. C. 554, 15 S. E. 703, 704. But in none of these cases did the question arise which Is presented here. Following these cases, the test would seem to be, as to the right of the appellant to appeal costs, whether he has succeeded in reversing the judgment appealed from. Now, In the cases at present under consideration it is very clear that the appellants did not succeed in reversing the judgments appealed from. On the contrary, these judgments now stand affirmed, though reduced in amount by the voluntary act of the plaintiffs themselves; for it is very obvious that this court had no power to require the plaintiffs to abate the amount of their recovery. All that this court could do, and all that it...