Jennings v. Burton

177 F. 603, 1910 U.S. App. LEXIS 5335

• Court: District Court, S.D. New York
• Decided: February 14, 1910
• Status: Published

Opinion

LACOMBE, Circuit Judge.

In this case plaintiffs recovered a judgment on the first trial. A writ of error was sued out by defendant, and the Court of Appeals reversed the judgment for error on the trial, with costs of such appeal to plaintiff in error. The costs were subsequently taxed, and judgment absolute was entered for the amount in this court; the court declining to modify the mandate by directing that they should abide the event. They were thereupon paid. , On a second trial, plaintiff prevailed, and is now about to enter judgment. He asks to be allowed to tax as a “disbursement,” to be included with his costs, the sum he paid in settlement of the judgment for costs of the first appeal.

Reference is made to Hamilton v. Aslin, 3 Watts (Fa.) 222; but I am satisfied that there is no authority for the practice in this court. The appellate tribunal imposed costs for error committed on the trial, for which defendant in error must be held responsible, and to allow reimbursement in the way suggested would practically be to annul its decision. I have consulted with the other Circuit Judges before filing this memorandum.

The clerk’s decision as to certain witness fees is correct.

Taxation affirmed.