100 Ind. 40 | Ind. | 1885
After this cause ivas at issue, it was submitted to the court for trial, and, at the request of the parties, the court made a special finding of facts and stated its conclusions of law thereon. Over the exceptions of the appellant, the plaintiff below, to the' court’s conclusions of law, judgment. wras rendered in accordance therewith.
In this court the appellant has assigned error which calls in question the correctness of the trial court’s conclusions of' law upon the facts specially found.
The facts found by the court were, substantially, as follows: On the 23d day of August, 1878, the appellant filed his com
At the May term, 1881, of the Supreme Court, the aforesaid appeal was decided, and it was adjudged by that court “ that the judgment be and is in all things reversed, at the costs of the appellee, and the cause is remanded with instructions to sustain the demurrer to the cross complaint and the motion to change the venue.” Shoemaker v. Smith, 74 Ind. 71. After the cause was remanded, the opinion was entered on the order-
Upon the foregoing facts the court stated its conclusions of law, substantially, as follows:
1. Under the judgment of the Supreme Court, awarding •costs to appellant on the judgment of reversal, the appellant was entitled to have taxed against the appellee, and to recover as a part of said judgment, the fees of appellant’s witnesses, who were in attendance on the 25th and 26th days of the January term, 1879, amounting to $55 in all.
2. Under said judgment the appellant was not entitled to have taxed against appellee, or to recover of him, any
3. Appellant was not entitled to recover the costs of attendance of his witnesses on the -24th day of the January term, 1879, on which day the motion for change of judge was overruled.
4. Appellant was not entitled to recover, under the judgment of the Supreme Court, for the costs paid by him of the continuances of the cause thereafter had.
5. Appellant was not entitled to recover of the appellee, under the judgment of the Supreme Court, the costs of the clerk of the court below, made at the January term, 1879, after the overruling of the motion for a change of judge, which had already been paid to the clerk by the appellee.
6. Appellant had the right to have the amount of the costs, which were properly taxable under the judgment in his favor ■of the Supreme Court, to wit, the sum of $55, with interest thereon from May, 1881, set off against appellee’s judgment against him.
7. Upon the whole case, there ought to be a finding and judgment that there was due the appellant on his judgment for costs against the appellee, ordered by the Supreme Court, the sum of $60, princijml and interest, and that the same •ought to be credited as a set-off and satisfaction pro tanto, upon appellee’s judgment against the appellant.
Appellant excepted to each of the court’s conclusions of law except the first and ~sixth, which were in his favor. The .appellee excepted to the first and sixth conclusions of law, but he has not assigned any cross error, and, therefore, we are not required to consider the correctness of these conclusions.
The case is before us solely on the special finding of facts .and the exceptions reserved to the second, third, fourth, fifth and seventh conclusions of law. In such a case, as we have
It will be observed that the trial court has based each of its conclusions of law in this case upon the judgment for costs which the appellant recovered against the appellee in this court in the former case, between the same parties, of Shoemaker v. Smith, 74 Ind. 71. It will also be observed that the court has not found, as a fact, that in the former suit between the parties any judgment for costs was rendered by the court below in favor of appellee and against the appellant, at or before the making of the order for the appointment of a receiver, from which order the appeal was taken to this court in the case last cited. Indeed, we think it is shown in the special finding of facts that in the former suit no judgment for costs was ever rendered by the court Jjelow in favor of either party until the cause was finally disposed of, and .long after the determination of the appeal therein to this court. Of course, therefore, the appeal to this court was not taken by the appellant from any judgment of the court below against him for costs, for there was no such judgment from which an appeal could have been taken. The appeal was taken from the order for the appointment of a receiver, and there is, at least, room for doubt as to whether or not the reversal of that order could or would entitle the appellant to recover any costs for the attendance of witnesses in the main action, which was continued from term to term, and was not tried until after the appeal was determined. This question is not before us, and is not decided.
In section 664, R. S. 1881, which is a substantial re-enactment of section 573 of the civil code of 1852, it is provided that “ when the judgment is reversed in whole, the appellant
The judgment is affirmed, with costs.