Lesh v. Johnston Furniture Co. , 214 Ind. 176 ( 1938 )

ON MOTION TO MODIFY MANDATE. Appellant has filed a motion, supported by a brief, to modify the mandate appended to the original opinion and to retax the costs. He questions the propriety of the order of this 13. court directing the entry of judgment on the pleadings for $300, and asserts that we should have ordered a new trial instead. We can not sustain this contention. We found no error in the proceedings in respect to any of the appellant's assignments, except as to appellee's admitted liability of $300. The statute, § 2-2503 Burns' Ann. St. 1933 (§ 375 Baldwin's 1934), authorizes judgments on pleadings after verdicts. The judgment appealed from was therefore contrary to law, which required a reversal of the cause. But since there was no other error, further litigation is not only unnecessary but unwarranted, and it would be a useless thing to order a new trial under the circumstances.

In support of the motion to retax the costs, our attention is called to § 2-3237 Burns 1933 (§ 511 Baldwin's 1934), which provides that "when the judgment is reversed in whole 14-17. the appellant shall recover costs in the Supreme Court and the court below to the time of the first error for which the judgment is reversed, which shall be pointed out in the opinion of the Supreme Court." The same section further provides that: "In all other cases, costs shall be awarded as the court may deem right." In legal and practical effect the mandate of this court amounted to an affirmance in part, and a reversal in part. Under such circumstances this court is vested with discretion in the allocation of costs. Adams Express Company v.Welborn (1915), 59 Ind. App. 330, 108 N.E. 163, 109 N.E. 420. It was not necessary for the appellant to come to this court to obtain a judgment for $300. He might have moved for judgment in that sum on the pleadings, notwithstanding the verdict against him, and we must indulge the presumption that the trial court would have granted that relief had it been requested. On all other errors assigned, the judgment of this court was against the appellant. It would therefore appear to be proper and equitable that he should bear the costs occasioned by this appeal.

Appellant's motion to modify the mandate and to retax the costs is denied.