Yalobusha County v. Davis

114 So. 34, 148 Miss. 153, 1927 Miss. LEXIS 7

• Court: Mississippi Supreme Court
• Decided: October 3, 1927
• Docket: No. 26452.
• Status: Published

Opinion

ANDERSON, J.,

'delivered the opinion of the court.

This is an appeal from the -circuit court of Yalobusha county, by that county, from a judgment taxing* the county with the costs of this cause; the only question in the case being whether or not the judgment of the circuit court taxing* the county with the costs is erroneous.

The county condemned some of the land of appellee for a public road. Under the statute, the board of supervisors allowed him damages in the sum of four hundred twenty-five dollars. He was dissatisfied with that judgment- and' appealed therefrom to the circuit court, where there was a trial resulting in a verdict and judgment for1 only four hundred dollars. Thereupon the county, proceeding on the theory that appellee should be taxed with the costs of the circuit court because he had recovered less in that court than the amount of the judgment appealed from, made a motion to tax appellee with the costs of the circuit court. It is from that judgment that this appeal is prosecuted by the county.

Under section 95&, Goldie 1006' (Hemingway’s Code 1927, section 676), the costs of a cause go, as a matter of course, against the unsuccessful party. This statute provides : •

“In all civil actions, the party in whose favor judgment shall be given, and in case of nonsuit, dismission, or discontinuance, the defendant shall be entitled to full costs, except when it may be otherwise directed by law; and the law of costs shall not-be interpreted as penal.”

Section 961, Code 1906 (Hemingway’s Code 1927, section 668), provides as follows:

“In all cases of certiorari upon the judgment of any inferior court or tribunal, and in cases of appeal from the judgment of a board of supervisors, of a court of unlawful entry and detainer, of any municipal board or court, the successful party shall be entered to recover full costs; but the circuit court may, when the circumstances of the case justify it, tax the costs to meet the ends of justice.”

Clearly, under tlie latter statute, the trial court had the authority, if in its discretion it thought that it ought to he done, to tax appellee with either the whole or a part of the costs incurred in his cause in the circuit court. The court, in the exercise of that discretion, declined to tax appellee with any part of the costs of the circuit court. This court will not overturn such a judgment unless there is a manifest abuse of that discretion on the part of the trial court. We cannot say from the record in this case that there has been such an abuse or discretion. The trial court may have been of the opinion, after hearing the ease, that notwithstanding the verdict of the jury in the circuit court appellee had probable grounds to expect to recover more than the amount of the judgment of the board of supervisors appealed from, and that therefore the ends of justice would be met by permitting the costs to go against the county under the first statute aboVe. Bernheim et al. v. State (Miss.), 28 So. 28.

Affirmed.