Fitch v. Green , 39 Okla. 18 ( 1913 )

The original opinion shows that this case should be affirmed, but for the fact that, under the instructions of the trial court, plaintiff may have recovered an item of $100, claimed without support in the evidence, and on petition for rehearing plaintiff offers to remit the sum of $100, and asks that the judgment be modified and affirmed so as to stand for the sum of $465, instead of the sum of $565, for which it was entered, which offer to remit destroys the reason and obviates the necessity for reversal. The judgment of the trial court is therefore ordered reformed, so as to reduce the principal for which the same was given from the sum of $565 to the sum of $465, and the said judgment is affirmed for the said sum of $465, with lawful interest thereon.

Section 4458, St. Okla. 1893 (section 5261, Rev. Laws 1910), reads:

"When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and, when reversed in part and affirmed in part, costs shall be equally divided between the parties."

In Mullen et al. v. Robinson et al., 30 Okla. 527,120 P. 1099, it is suggested that, where an appeal is not alone upon the question requiring a reversal, but for a remittitur, the reasons which might be urged in favor of taxing all the costs against defendant in error, where the appeal is alone upon such question, do not exist.

We are of opinion that the costs of appeal should be divided between the parties to this action.

By the Court: It is so ordered.