100 Ga. App. 58 | Ga. Ct. App. | 1959
Lead Opinion
1. On the former appeal of this case (Sweat v. Ehrensperger, 97 Ga. App. 381, 103 S. E. 2d 60), which grew out of a suit for damages brought by Ed Ehrensperger against Lonnie E. Sweat and R. M. Pearson, Jr., in which Ehrensperger obtained a judgment against Sweat and Pearson in the amount of $300, the, defendants obtained a substantial modification of the judgment in that this court ruled that if the plaintiff would write off the sum of $100 the judgment of the trial court would be affirmed, otherwise the judgment would be reversed. On that appeal the defendants made a motion for rehearing, and also on the same date made a motion that this court “tax the costs which have accrued as a result of suing out the writ of error in the instant case and the costs in the appellate court against the defendant in error [the plaintiff].” The motion for rehearing was denied but no mention was made in the opinion of the motion to tax the costs. On April 26, 1958, the trial court entered judgment in the case pursuant to the remittitur from this court, ordering that the plaintiff recover of the defendants the sum of $200 together with interest. On May 7, 1958, the defendants made their motion that the trial court tax the costs of carrying the case from the trial court to the appellate court and the costs in the appellate court against the plaintiff. In response to the motion to tax costs, the plaintiff contended in effect that since no affirmative action had been taken by this court on the defendants’ motion to tax costs and that feature of the case had not been presented to the Supreme Court by petition for certiorari, the matter of taxing appellate costs had been finally and irrevocably
The foregoing case is on all-fours with, and is decisive of, the present case.
Judgment reversed.
Rehearing
On Motion for Rehearing
We have considered the fact that on the former appearance of the case a motion was made that this court tax the costs of the appeal. This court did not pass upon the motion and hence there was no adjudication of the question as to how the costs should be taxed. Assuming that this court had jurisdiction to tax the costs, the superior court had original and concurrent jurisdiction to pass upon the matter. Hartley v. Hartley, 212 Ga. 62, supra.