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DORNON v. MCCARTHY (06/17/65)

decided: June 17, 1965.

DORNON, APPELLANT,
v.
MCCARTHY



Appeal from judgment of Court of Common Pleas of Washington County, May T., 1959, No. 67, in case of Wilmer E. Dornon v. Charles E. McCarthy, trading and doing business as McCarthy Taxi Service, et al.

COUNSEL

Martin E. Geary, with him Frank C. Carroll, for appellant.

Samuel L. Rodgers, with him Rodgers and Roney, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Concurring Opinion by Montgomery, J.

Author: Ervin

[ 205 Pa. Super. Page 553]

The question involved in this appeal is whether the plaintiff is entitled to collect from the defendant the cost of printing his paper books in a prior appeal to the Supreme Court involving the same parties.

The plaintiff brought an action against the defendants in trespass and obtained a jury verdict for $30,000.00. The defendants filed a motion for a new trial primarily on the ground that the verdict was excessive. The court below held that the verdict shocked the conscience of the court and directed that a new

[ 205 Pa. Super. Page 554]

    trial be had unless the plaintiff filed a remittitur reducing the verdict to $13,000.00. This the plaintiff refused to do and the motion for a new trial was made absolute. The plaintiff appealed to the Supreme Court (Dornon v. McCarthy, 412 Pa. 595, 195 A.2d 520). The Supreme Court agreed with the court below that the verdict was excessive and also agreed that the proper amount of the verdict should be $13,000.00. Accordingly, instead of affirming the grant of the new trial, the Supreme Court directed the court below "to enter judgment for the plaintiff as of the date of the verdict in the amount of $13,000."

Upon the return of the record to the court below, the plaintiff filed a bill of costs, including the charge for printing the record and briefs in the Supreme Court. After argument, the court below ordered that the plaintiff shall pay the cost of printing his own paper books. It is from that order that the plaintiff has appealed to this Court.

The right to recover costs is strictly governed by statute. In Cameron v. Paul, 11 Pa. 277, it was said: "At common law there were no costs in error. They were first given by the statute 3 Henry, 7, cap. 9, against defendants, who sued out a writ of error, when the judgment was affirmed, the writ of error discontinued or the party became non-suit. This statute was affirmed by the 19 Henry 7, cap. 20. Next followed the 13 Car. 2, cap. 2, which gave to defendants in writs of error double costs, on an affirmance of the judgment below, and the 8 and 9 Wm. 3, cap. 11, by which it was enacted, that after judgment for a defendant, if the plaintiff or demandant sued out a writ of error, and the judgment should be affirmed, or the writ discontinued, or the plaintiff become non-suit thereon, the defendant should have judgment to recover his costs against the plaintiff or demandant. All those acts are reported to be in force in Pennsylvania;

[ 205 Pa. Super. Page 555]

    but none of them cover this case, and I know of no enactment of our own on this subject."*fn1

The earliest statute involving costs in appealed cases was the Act of May 19, 1897, P. L. 67, § 21, 12 PS § 1160. This act, however, did not mention paper books. However, the costs of printing paper books were included in the Act of April 15, 1907, P. L. 83, § 1, as amended by the Act of April 27, 1909, P. L. 263, § 1, 12 PS § 1193, which provided: "In all cases, either in law or equity, wherein an appeal is taken from any judgment, decree, or order to the Supreme or the Superior Court, the party in whose favor the final decision is rendered shall be entitled to charge, and collect from the losing party as part of the costs, such amount as shall have been expended for printing paper-books upon said appeal. The cost of printing the paperbook of each party shall be taxed as costs, collectible by the attorney of record of such party in such appeal. Said amounts to be taxed and collected in the same manner as costs are now taxed and collected by law."

Subsequently the Act of June 5, 1913, P. L. 422, was enacted. Section 1, 12 PS § 1195, dealt with the situation where the appellate court reversed without a venire for a new trial and reads as follows: "In all appeals to the supreme or superior court, when the judgment, order, sentence, or decree is reversed by said appellate court, without a venire or order and judgment as to the payment of costs, the lawful costs in said case, taxed in the lower court, shall be paid by the losing party in such appeal; ...


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