James McDaniel recovered a judgment in the Circuit Court of Eranklin County against the Nashville, Chattanooga and St. Louis Railroad Company. Dpon the appeal of the defendant company, the judgment was reversed, the costs of the appeal taxed to McDaniel, and the cause remanded for new trial. Execution for the costs so adjudged issued from this Court, and has been returned nulla bona.
The plaintiff, who is Clerk of the Eranklin Circuit Court, has given notice and moved for judgment over against the railroad company for part of the costs so adjudged against McDaniel, upon the ground that such costs accrued at the instance of the defendant company.
Section 3928 of the Code (M. & Y.) provides that “ all costs. accrued at the instance of the successful party, which cannot be collected out of the other party, may be recovered, on motion, by the person entitled to them, against the successful party.” The costs now sought to be collected are the costs of transcript, appeal bond, certificate, and seal. This transcript was made out upon the appeal of the railroad company, and at its instance, and is clearly “ costs accrued at the instance of the successful party” within the meaning of the Code. The return of an execution is sufficient evidence that the costs .could not “be collected out of the other party.”
The objection that the motion is premature, the. suit still pending, is not well taken. The judg
Motion allowed. Costs of motion will be paid' by defendant.