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Oberoesterreich v. Gude

December 6, 1937

LAND OBEROESTERREICH
v.
GUDE ET AL.



Appeal from the District Court of the United States for the Southern District of New York.

Author: Hand

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff formerly recovered a judgment against the defendants. This judgment wsa reversed on appeal and a new trial was ordered. The mandate of this court ordering a new trial awarded costs to the defendants in the sum of $834.42, and the order on the mandate entered in the District Court awarded additional costs of appeal in that court to the amount of $1,087.88. This is an appeal by the plaintiff from the part of the order on the mandate which granted costs to the defendants in the District Court to the amount of $1,087.88. No question is raised as to the propriety of the allowance of the item of $834.42, which was the cost of printing the transcript of the record on appeal. The additional costs taxed at $1,087.88 by the clerk of the District Court consisted of the following:

Premiums on bonds filed by the de-

fendants to stay execution of

plaintiff's judgment pending ap-

peal $1,082.38

Fee of Clerk of the District Court

on filing petition for appeal 5.00

Fee of Clerk of District Court for

certification of record on appeal .50

$1,087.88

The costs of printing the transcript on appeal have by custom of long standing been taxed by the clerk of the Circuit Court of Appeals, as was done in the present case. On the other hand, the fees paid to the clerk of the District Court for filing the petition for the writ of error and for certification of the record have been taxed in the District Court. Berthold v. Burton, 169 F. 495 (C.C.). Under this practice the items of $5 and 50 cents were taxed by the clerk of the District Court and are not now questioned. These sums, as well as the item of $834.42, are clearly costs incurred in respect to the appeal, which, under settled federal procedure, do not abide the event of the trial but are taxable in favor of the party prevailing on the appeal and are payable on reversal of the judgment. Berthold v. Burton, 169 F. 495 (C.C.). The item of $1,082.38, which is the only one that is at present attacked, represents the cost of the supersedeas bond. We think ...


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