STONE MOUNTAIN MEMORIAL ASSOCIATION
v.
STONE MOUNTAIN SCENIC RAILROAD, INC.
Supreme Court of Georgia.
*95 Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, H. Andrew Owen, Jr., Assistant Attorneys General, Michael W. Dyer, Deputy Assistant Attorney General, for appellant.
Swertfeger, Scott, Pike & Simmons, M. H. Blackshear, Jr., for appellee.
NICHOLS, Presiding Justice.
This is the second aрpearance of this case in this court. See Stone Mountain Scenic R. v. Stone Mountain Memorial Assn.,
1. The Association's counterclaim аs amended prior to the judgment on the summary judgment sought to recover interest on the amount due under the terms of the contract from the duе dates.
Under the prior decision of this court in this case such amounts were liquidated and the Association was *93 entitled to "a summary judgment on аll issues raised by the Railroad's claim and the Association's counterclaim." The trial court erred in refusing to enter a judgment for interest. Comрare State Hwy. Dept. v. Knox-Rivers Const. Co.,
2. The Association relies upon the decision of the Cоurt of Appeals in Barnett v. Thomas,
Prior to the adoption of the Appellate Practice Act of 1965, supra, a brief of the evidence was filed by the party desiring to rely on such evidencе on review of the case. The clerk of the trial court copied such brief of the evidence and transmitted the copy to thе appellate court. The costs paid the clerk for copying the brief of evidence were recoverable costs when the appealing party was successful. See Greer v. Whitley,
Code Ann. § 6-805(c) provides that felony cases must be reported, that misdemeanor cases may be reported and "In all civil cases tried in the superior and city courts and in any other court, the judgments of which are now or hereafter subject to review by the Supreme Court or Court of Appeals, the trial judge thereof may require the parties to have the proceedings and evidence reported, the costs thereof to be borne equally between them and where an аppeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at his expense. Where it is determined that the parties, or either of them, are financially unаble to pay the costs of reporting or transcribing, the judge may in his discretion *94 authorize trial of the case unreported, and when it beсomes necessary for a transcript of the evidence and proceedings to be prepared, it shall be the duty of the moving рarty to prepare the transcript from recollection or otherwise." Subsection (j) of the same section provides: "In all сases, civil or criminal, any party may as a matter of right have the case reported at his own expense."
Code Ann. § 6-806 provides in рart: "Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by section 6-805, but when the appellant has designаted that the transcript not be made a part of the record on appeal and its inclusion is by reason of a designation therеof by appellee, the appellee shall cause the transcript to be prepared and filed as hereinbeforе referred to at his expense... In all cases, it shall be the duty of the trial judge to grant such extensions of time as may be necessary to еnable the court reporter to complete his transcript of evidence and proceedings."
Prior to adoption of thе Appellate Practice Act, supra, the payment to the court reporter was not recoverable as costs.
The Appellate Practice Act makes it clear that the cost of obtaining from the court reporter a transcript of the evidence falls on the party desiring that the same be transmitted to the appellate court.
While the costs of having transcript preрared by the court reporter are an expense of appeal they are not costs of appeal which is recoverable from the appellee where the appellant is successful in obtaining a reversal in the appellate court.
The opinion in Barnett v. Thomas, supra, is disapproved and the judgment of the trial court refusing to permit the Assоciation to recover the costs of obtaining a transcript of the evidence on the original appeal is affirmed.
Judgment аffirmed in part; reversed in part. All the Justices concur, except Gunter, Ingram and Hall, JJ., who dissent from the ruling in Division 2.
HALL, Justice, dissenting.
In my opinion the Court of Appeals correctly stated the law on this question in Barnett v. Thomas,
The Appellate Practice Act of 1965 provides that the appellant is entitled to а judgment for the "costs in the appellate court" in case of a reversal. Code § 6-1704. It also provides that "it shall be the duty of the aрpellant to have the transcript [of the evidence] prepared at his expense." Code Ann. § 6-805 (c). Section 6-1704 and 6-805 (c) of the Appellate Practice Act must be construed together.
"The term `costs,' as applied to proceedings in a court of justice, has, in the acceptance of the profession, and by the practice of all courts in Georgia, a well understood meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the court in the progress of the cause." Markham v. Ross,
I am authorized to state that Justices Gunter and Ingram concur in this dissent.