Scott v. Doughty

107 S.E. 729, 130 Va. 523, 1921 Va. LEXIS 170

• Court: Supreme Court of Virginia
• Decided: June 16, 1921
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The case turns upon the decision of the following question :

[1] 1. Does section 3525 of. the Code embrace only costs in the trial courts or does it also embrace costs in the appellate court?

We are of opinion that this statute embraces only costs in the trial court and that it has no reference to costs in the appellate court.

Section 3525 of the Code, so far as material, provides as follows:

“Except where otherwise provided, the party .for whom final judgment is given in an action or motion, whether he be plaintiff or defendant, shall recover his costs against the opposite party; * * *” (Italics supplied.)

With respect to costs in the appellate court, it is “otherwise provided” in section 3528 of the Code. That section is as follows:

“In every case in an appellate court costs shall be recovered in such court by the party substantially prevailing.”

Costs in the appellate court are controlled by this section.

Upon the question under consideration this is said in the brief for the defendant in error:

“So far as we are advised, there is no decision of this court which throws any light upon the subject, unless Allen’s Ex’r v. Shrieve’s Adm’r, 81 Va. 174, does * * * *” We find nothing in the opinion of the court in that case, or in its holding, contrary to the conclusion we have reached and above expressed.

[2-4] It follows from> what we have said above that the plaintiff in error, Scott, is entitled to the appellate court costs which-he heretofore recovered in that court, being the total of $406.70, but without interest, as costs do not bear interest. The allowance of costs depends entirely upon statute, no costs being allowed in any case a.t common law. 4 Minor’s Inst. (2nd ed.), p. 874. There is no statute in Virginia allowing interest on costs. By virtue of section 3525 of the Code, however, the defendant in error, Willietta Doughty, as the final judgment in the action of ejectment was given in her favor, is entitled to the sum of $126.94, her costs incurred in that action in the trial court and by virtue of section 3528 of the Code, she is entitled also to the said sum of $22.59, her costs recovered in that action in the appellate court, both together aggregating the sum of $149.53 aforesaid; and the latter sum, without interest, she is entitled, under her special plea, to set off against the said $406.70, leaving a balance of $257.17 for which the said Scott is entitled to judgment against the said Willietta Doughty.

The case will, therefore, be reversed, and, under section 6365 of the Code, this court will enter judgment in favor of Marion Scott against Willietta Doughty for the sum of $257.17, without interest, and for his (the said Scott’s) costs in the case in judgment, both in this court and in the court below.

Reversed and final judgment for plaintiff