60 S.E. 938 | S.C. | 1908
March 20, 1908. The opinion of the Court was delivered by This is an appeal from a judgment of the Circuit Court affirming taxation of Supreme Court costs by the clerk in favor of plaintiff in the above entitled case.
The plaintiff had recovered judgment against defendant before a magistrate for two dollars damages and forty dollars statutory penalty for delay in transportation of freight, and this judgment was affirmed by the Circuit Court. On appeal to this Court (
Each side claiming to be the "prevailing party" gave notice of taxation of Supreme Court costs before the clerk, with the result as stated.
The question presented is, Which party is entitled to the costs as prevailing party? This is a case at law and the Court can only affirm or reverse, and has no power to modify as in equity cases. Hosford v. Wynn,
The judgment in this case, if it is not to be strictly construed as an affirmance of the judgment appealed from bears analogy to cases at law in which a new trial nisi has been granted, but judgment to stand affirmed upon remitting the amount designated by the Court, in which case, if the remittance is made and judgment stands affirmed for the reduced amount, the party whose judgment stands affirmed is the prevailing party and entitled to costs of appeal. Stepp
v. Association,
The judgment of the Circuit Court is affirmed. *390