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has power to allow an amendment of the entry of judgment of affirmance, ordered on appeal from the inferior courts, where erroneously entered through mistake; and the power will be exercised when no injustice is caused thereby (Bagley v. Brown, 3 E. D. Smith, 66; and see Fields v. Moul, 15 Abb. 7).
a. Rehearing of appeal.-A rehearing of appeal will not be granted, where no advantage could result from it, and where the court is satisfied that a rehearing would lead to the same result as had been already arrived at (Teaz v. Chrystie, 2 Abb. 259; 2 Hilton, 135).
§ 367. (Am'd 1852, 1865, 1869.) Judgment-roll.
To every judgment upon appeal there shall be annexed the return upon which it was heard, or a certified copy thereof, the notice of appeal, with any offer, verdict, decision of the court, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment, which shall be filed with the clerk of the court, and shall constitute the judgment-roll.
§ 368. (Am'd 1849.) Award of costs.
If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.
b. Costs on partial affirmance.-Where a judgment was affirmed in part and reversed in part, the respondent was allowed his costs in the court below, but was required to pay the costs of the appeal (Cole v. Swanston, 1 Cal. R. 51).
c. When the court must award costs.-In affirming a judg ment, the appellate court is compelled by statute to award costs to the respondent, and has no power to relieve from the payment of those costs (Logue v. Gillick, 1 E. D. Smith, 398); and on reversing a judgment the court has no discretion as to costs. The reversal must be with costs (Hahn v. Van Doren, id. 411; Main v. Eagle, ib. 621; Chapin v. Churchill, 12 How. 367; Snyder v. Goodrich, 2 E. D. Smith, 85; see now, however, § 371, post).
d. Costs of court below.-Where a judgment for plaintiff is reversed, without an award of judgment for the defendant, the defendant's cost in the court below cannot be allowed to him and included in the judgment of reversal (Ellert v. Kelly, 4 E. D. Smith, 12). Whether such costs should be allowed to the appellant, where the appellate court not only reverses the judgment below, but also orders judgment final for the appellant upon the merits, query? (id.; see Lewis v. Fox, 19 How. 561, 281; 20 How. 96, note; 11 Abb. 134).
e. A respondent who succeeds on an appeal is entitled to the judgment of the appellate court in affirmance of his judgment. Whether the whole judg ment, with the costs of appeal, can be collected by execution issued out of the appellate court, when the transcript of the original judgment has not been filed with the county clerk, query? It seems that the respondent, on affirmance, is not required to issue execution out of this court to collect the amount of the original judgment, and that there is no difference between the marine and justices' courts and any other, in respect to the effect of an appeal upon the power of the court below, to enforce its own judgment (Smith v. Allen, 2 E. D. Smith, 259; see Onderdonk v. Emmons, 2 Hilton, 504).
f. Payment of judgment pending the appeal.-Pending an
appeal from a judgment obtained in a justice's court in favor of the plaintiff, the defendant paid the judgment without costs of appeal, to a son of the plaintiff, who was not shown to have had any authority to receive the payment. The judgment was afterward affirmed by default, the defendant not appearing; and the plaintiff issued execution directing a levy simply for the cost of appeal,-held regular and proper. If a party who has appealed from a judgment relies upon a payment thereof as a reason for a stay of proceedings, he should appear and apply for an order accordingly, before judgment. of affirmance is entered (Adams v. Kearney, 2 E. D. Smith, 42; see Champion v. Plymouth Cong. Soc. 42 Barb. 441).
$369. (Am'd 1849, 1857.) Restitution.
If the judgment below, or any part thereof, be paid or collected, and the judgment be afterward reversed, the appellate court shall order the amount paid or collected to be restored with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days; and if the order shall be made before the judgment is entered, the amount may be included in the judgment.
a. When restitution will be ordered.--Where, upon a reversal, it appears by a transcript from the docket, that the judgment has been satisfied, restitution will be ordered (Hunt v. Westervelt, 4 E. D. Smith, 225).
b. Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record, on reversal thereof the plaintiff in error cannot enter a suggestion and award of restitution of payment in his record of reversal, without leave of the court. It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course (Sheridan v. Mann, 5 How. 201).
c. The proper course, where a party appealing is entitled to a restoration, is a motion in the appellate court for restoration; and on that motion being granted, it becomes a part of the judgment in the appellate court, and the amount can be collected by execution with the costs (Kennedy v. O'Brien, 2 E. D. Smith, 41).
See ante, p. 360, a.
§ 370. Setting off costs and recovery.
If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance.
§ 371. (Am'd 1849, 1851, 1862, 1863, 1864, 1866.) Notice of appeal. Offer to allow judgment to be corrected. Costs on appeal. Set-off of costs.
Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations: In the notice of appeal, the appellant shall state in
what particular, or particulars, he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve 'upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may, thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall, thereupon, make a minute thereof in his docket, and correct such judgment accordingly, and the same, so corrected, shall stand as his judgment, and be enforced accordingly; and any execution which has been issued upon the judg ment appealed from shall be amended by the justice to correspond with the amended judgment; and no undertaking, given to stay execution, shall be enforced for more than the amount of the corrected judgment. If such offer be not made, and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below, or if such offer be made and not accepted, and the judgment in the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs; provided, however, that the appellant shall not recover costs unless the judgment appealed from shall be reversed, on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made, and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs in the court below. But the appellant shall not recover costs except as provided in this chapter. The respondent shall be entitled to recover costs where the appellant is not. Whenever costs are awarded to the appellant, he shall be allowed to tax, as part thereof, the costs and fees paid to the justice on making the appeal, as disbursements, in addition to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover, in case the judgment below had been rendered in his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or damages, and render judgment for the balance. The following fees and costs, and no other, except fees of officers, disbursements, and witnesses'
fees, shall be allowed on appeal, to the party entitled to costs as herein provided, when the new trial is in the county court. For proceedings before notice of trial, ten dollars; for all subsequent proceedings before trial, seven dollars; for trial of an issue of law, ten dollars; for every trial of an issue of fact, fifteen dollars; for argument of a motion for a new trial on a case or a bill of exceptions, ten dollars; in all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows: To the appellant, on reversal, fifteen dollars; to the respondent, on the affirmance, twelve dollars. If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no costs shall be allowed to either party. In every appeal, the justice of the peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If, in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed.
ɑ. Notice of appeal.—When the appeal is brought for the sole purpose of reversing the judgment, the notice of appeal need not state in what particular the judgment should have been more favorable (Wallace v. Patterson, 29 How. 170). A notice that judgment for damages is for too large a sum, and ought not to have been given for more than $33 damages and $5 costs, and if not so amended, should be reversed,-held sufficient (Myers v. White, 37 How. 393; but see Loveland v. Atwood, 31 How. 467).
b. A notice of appeal which stated the judgment should have been in favor of defendant and against the plaintiff for costs, is not sufficient to entitle the appellant to costs on recovering a more favorable judgment in the county court (Loomis v. Higbie, 29 How. 232; Reed v. Moore, 31 How. 264); otherwise, of a statement "That the judgment should have been for a less amount of damages against the defendant" (id.; see note 29 How. 288); and a notice that 66 the judgment is for too much,"-held not sufficient (Barnard v. Pierce, 28 How. 232).
c. Offer.-If the appellant appears in person, the offer to allow the judgment to be amended as claimed in the notice of appeal, should be served on the appellant and on the justice (Smith v. Hinds, 30 How. 187); but if the appellant appears by attorney, the offer should be served on such attorney (Purvis v. Gray, 39 How. 1).
d. The offer cannot be given in evidence on the argument of the appeal (Finney v. Veeder, 45 Barb. 388; 1 Abb. N. S. 366; 31 How. 14).
a. More favorable verdict.—Where plaintiff recovered judgment for $50 damages and $8 05 costs, and defendant appealed, specifying that the damages should have been $5 and the costs of the justice, the defendant served an offer to allow judgment to be reduced to $35 damages, defendant did not accept the offer, and on the trial in the county court recovered $25 damages,-held that plaintiff had recovered a more favorable verdict, and was entitled to costs (Baldwin v. Brown, 37 How. 385). In estimating whether or not the verdict in the county court is more favorable, interest is not to be calculated; thus, where the plaintiff recovered $80 in the justice's court, and $75 in the county court, he is entitled to costs; although, if interest had been added, it would have made the second verdict more than $10 less than the first (Humiston v. Ballard, 39 How. 93; see Smith v. May, 32 How. 222; 2 Abb. N. S. 227).
b. Plaintiff recovered judgment for $140; the defendant appealed, and claimed that judgment should have been in his favor. On a new trial in the county court plaintiff recovered $68.59,-held that the plaintiff was entitled to costs of appeal (Wynkoop v. Holbert, 25 How. 158; 43 Barb. 266).
c. The plaintiff recovered judgment for $159.50; defendant appealed, and stated that judgment at most should have been only for $5; the plaintiff did not offer to allow the judgment to be corrected, and on a new trial in the county court recovered judgment for $130,-held that defendant was entitled to costs (Fox v. Nellis, 25 How. 144; see Myers v. White, 37 How. 393).
d. Costs. Where an offer to allow the judgment to be amended was served, and was accepted, and the judgment was corrected accordingly,-held that the appellant was entitled to an order, or judgment, from the appellate court for his disbursements on appeal, and his costs in the court below (Ponto v. Phelps, 36 How. 19).
e. The costs to the appellant, on a new trial, do not depend solely on the fact that he has recovered a more favorable judgment, but on the fact whether his notice of appeal was sufficient (Forsyth v. Ferguson, 27 How. 67).
f. Set-off of costs against recovery (Ecans v. Vance, 2 Barb. 598; Johnson v. Farrell, 10 Abb. 384).
g. Costs on appeal in the marine court (Lewis v. Fox, 11 Abb. 134, 281; 19 How. 561; 20 How. 96, note).
h. Costs when appeal heard in the supreme court.-Where an appeal from a judgment rendered by a justice of the peace is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the county judge (Taylor v. Seeley, 4 How. 314; O'Callaghan v. Carroll, 16 How. 327).