Appeal from judgment of Court of Common Pleas of Washington County, May T., 1960, No. 225, in case of Joanne G. Morris et vir v. Charles Peckyno.
Paul N. Barna, with him Barna and Barna, for appellants.
August L. Sismondo, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J.
[ 207 Pa. Super. Page 218]
This is another case which raises the question as to which party shall bear the cost of printing paper books in a prior appeal of the case.
We had occasion to consider this question in the recent case of Dornon v. McCarthy,*fn1 205 Pa. Superior Ct. 552, 211 A.2d 28, where we were able to classify all the prior cases on this subject into three categories. We said: "In the first group are cases where the appeal to the appellate court results in the granting, or the affirmation of a grant, of a new trial. In such a case it has been held that there is no final decision until the new trial is had and all costs must await the outcome of the new trial. In such situations it is immaterial which party was the verdict winner in the first trial or which party took the appeal to the appellate court. This rule applies to criminal as well as civil cases. . . . In the second group are cases where the plaintiff was the verdict winner in the court below and the defendant appealed to the appellate court, which did not grant a new trial but did reduce the plaintiff's judgment to a portion of his original verdict. It was held in these cases that the defendant was the losing party because the plaintiff had to defend his entire verdict, and that the defendant cannot charge the cost of his paper books,
[ 207 Pa. Super. Page 219]
even though he reduced the amount of his liability. . . . The final category is when the plaintiff was the verdict winner in the court below but was unsatisfied with the amount of his verdict and filed an appeal in which he was unsuccessful. In those cases it was held that if the plaintiff does not obtain a new trial 'or succeed in increasing or bettering his judgment in the slightest degree,' he cannot charge the cost of his paper book to the defendant." (Citing cases.)
However, the present case does not fall within any of the foregoing categories. The procedural facts are that the plaintiffs brought an action against the defendant as the result of an automobile accident. The jury returned a verdict in favor of the wife-plaintiff in the sum of $1,000 and in favor of the husband in the sum of $2,000. The defendant filed no motions, either for judgment n.o.v. or for a new trial, and stood ready to pay the verdicts. However, the plaintiffs considered the verdicts inadequate and moved for a new trial on that ground. The court below granted a new trial limited to the issue of damages. The defendant appealed to this Court from the order granting the new trial. We entered the following order: "The order of the court below is reversed, and judgments are here entered on the verdicts." Morris v. Peckyno, 202 Pa. Superior Ct. 490, 198 A.2d 396.
Upon the return of the record, both parties filed bills of costs which included the costs of the printing of their respective paper books. In separate orders, the court below dismissed the plaintiffs' bill and sustained the defendant's bill. The plaintiffs appealed.
The statutes concerning costs on appeal were set forth verbatim in Dornon v. McCarthy, supra, and need not be repeated here. It is sufficient to state that the party in whose favor the final decision is rendered shall be entitled to collect his costs, including the cost of his paper books, from the ...