Johnson v. Schulte

MEMORANDUM

Epitomized Opinion

At the first trial judgment was rendered for plaintiff. On proceedings in error the judgment was affirmed by the Court of Appeals, but reversed by the Supreme Court, which awarded a new trial and in the mandate to this court ordered “that plaintiff in error recover from defendant in error his costs in this court and in the Court of Appeals.” At the second trial judgment was rendered for plaintiff for $750 and costs. The question now before the court is whether the defendant is entitled to recover the costs of his successful proceedings in error in the Court of Appeals and Supreme Court or whether such costs follow the judgment in favor of the plaintiff in this trial and must be paid, together with the other costs by the defendant. Held by Judge Marx:

This question is answered by, 12279 GC. and by Cartwright v. Sole, '16 Ohio 316. The costs incurred in the proceedings in error must be paid by the party losing such proceedings. The costs in the original proceedings follow the final judgment. The mandate of the Supreme Court follows this rule. The defendant therefore is entitled to recover his costs in the Court of Appeals and in the Supreme Court. All costs incurred in the proceedings in this court shall be recovered by plaintiff in accordance with the final judgment. '