207 Pa. Super. 217 | Pa. Super. Ct. | 1966
Opinion by
This is another case which raises the question as to which party shall bear the costof printing paper books in a prior appeal of the case.
We had occasion to consider this question in the recent case of Dornon v. McCarthy,
However, the present ease does not fall within any of the foregoing categories. The procedural facts are that the plaintiffs brought an action against the defendant as the result of an automobile accident. The jury returned a verdict in favor of the wife-plaintiff in the sum of $1,000 and in favor of the husband in the sum of $2,000. The defendant filed no motions, either for judgment n.o.v. or for a new trial, and stood ready to pay the verdicts. However, the plaintiffs considered the verdicts inadequate and moved for a new trial on that ground. The court below granted a new trial limited to the issue of damages. The defendant appealed to this Court from the order granting the new trial. We entered the following order: “The order of the court below is reversed, and judgments are here entered on the verdicts.” Morris v. Peckyno, 202 Pa. Superior Ct. 490, 198 A. 2d 396.
Upon the return of the record, both parties filed bills of costs which included the costs of the printing of their respective paper books. In separate orders, the court below dismissed the plaintiffs’ bill and sustained the defendant’s bill. The plaintiffs appealed.
The statutes concerning costs on' appeal were set forth verbatim in Dornon v. McCarthy, supra, and need not be repeated here. It is sufficient to state that the party in whose favor the final decision is rendered shall be entitled to collect his costs, including the cost of his paper books, from the losing party. Which party won the final decision? The plaintiffs contend that
The reasoning behind the decisions in the second category, supra, was that, although the defendant had succeeded in reducing the plaintiff’s verdict,, the plaintiff had been under the burden of defending his entire verdict and had succeeded in defending the portion which he retained: Henning v. Keiper, 43 Pa. Superior Ct. 177; Knoller v. Everett Realty Co., 65 Pa. Superior Ct. 169. This was not the situation in the present case. The defendant’s liability was not involved, nor was the amount of the verdict which the plaintiffs had won- at the hands of the jury. On the former appeal, the 'plaintiffs were not required to defend either of those questions. The only issue which the plaintiffs were required to defend on. that appeal was their opportunity to increase those verdicts. This they failed to do.
We agree with Judge McCtjne of the court below that this case is controlled by Matthews v. Tyrone Coal Co., 74 Pa. Superior Ct. 588, where we said: “The act does not provide that the costs of the paper book shall be recovered by the party in whose favor judgment is finally rendered in the action, but in whose favor the ‘final decision’ is rendered.”
Judgment affirmed.
The Dornon case was'affirmed by tbe Supreme Court in a per curiam opinion witb three Justices dissenting: Dornon v. McCarthy, 420 Pa. 626, 215 A. 2d 386.