The opinion of the court was delivered by: GOURLEY
The matters herein arise under the Perishable Agricultural Commodities Act. 7 U.S.C.A. § 499a et seq.
An award was made under the Act in favor of the plaintiff in the amount of $ 2119.40 with interest from October 22, 1946.
At the first trial, before a member of this Court, now deceased, the award was sustained by the jury. However, a new trial was granted by the Court. Slip opinion and order filed January 29, 1949.
At the second trial, before this member of the court, the award under the Act was not sustained by the jury. However, a verdict was returned and judgment entered thereon in the amount of $ 1.00 in favor of the plaintiff. D.C., 89 F.Supp. 580.
The plaintiff appealed and judgment was affirmed with costs by the Court of Appeals for the Third Circuit, Hackworth v. Hiatt, 184 F.2d 517.
The plaintiff now requests the Court to approve as part of the costs of said proceeding the following:
I. An allowance for costs and attorney fees incident to the first trial.
II. An allowance for costs and attorney fees incident to the second trial.
III. An allowance for costs incident to the appeal to the Circuit Court, for the printing of the record and paper books.
I. Is plaintiff entitled to costs and counsel fees incurred during the course of the first trial when a new trial was awarded the defendants?
Where upon new trial, a judgment is reversed, the prevailing party is entitled to recover costs and disbursements usually in conformity with state practice where no specific provision is made by federal statute. United States v. Minneapolis, St. P. & S.S.M.R. Co., D.C., 235 F. 951; Gold Dust Corp. v. Hoffenberg, 2 Cir., 87 F.2d 451; Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919.
No provision exists in the Act for the allowance of costs and attorney fees unless the appellee shall prevail. 7 U.S.C.A. § 499g(c).
I cannot conclude that an appellee 'prevails' in an action, as intended under the Act, when said appellee's judgment is reversed and a new trial granted.
In Pennsylvania where a judgment is reversed, even if the same party prevails on retrial, said party is not allowed to tax costs which arise during the first trial. Havard v. Davis, ...