Upton's Committee v. Bush

144 S.W. 28, 147 Ky. 195, 1912 Ky. LEXIS 238

• Court: Court of Appeals of Kentucky
• Decided: February 28, 1912
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Hobson —

On Motion to Correct Taxation of Cost.

Upton’s committee brought this suit against (among others) W. B. Graddie and Bush & Irwin. By one judgment of the circuit court the petition was dismissed as to Graddie and by another judgment it was dismissed as to Bush & Irwin. The plaintiff prosecuted two separate appeals to this court on the same transcript. On each appeal the judgment was reversed (See Upton’s Committee v. Bush, &c., 135 Ky., 102.) The clerk in taxing the cost taxed the entire fee for the transcript, $24, against Bush & Irwin. They have entered a motion to correct the taxation of cost.

The case went off as to Bush & Irwin on a demurrer; Not over one-fifth of the record was material on the appeal as to them. Only one transcript was used and only one transcript fee should be taxed. This should be di7 vided between the parties. One-fifth should be taxed against Bush & Irwin and four-fifths against Caddie. As Bush & Irwin did not obtain the record from the clerk or use it, no fee for copy of the transcript should be charged to them. The clerk will correct the taxation of cost as above indicated. The tax on appeal $2, attorney’s fee $10 and clerk’s fees on that appeal were properly taxed against Bush & Irwin.

Motion sustained as above indicated.