Turner v. Carroll

Bleckley, Judge. On writ of error, this court reversed a judgment refusing a new trial, but added instructions to the court below to refuse the new trial still, if the defendant in error would consent to certain prescribed terms. When the remittitur was entered in that court he accepted the terms. The court, nevertheless, permitted the plaintiff in error to take judgment for the costs incurred in this court. The Code, section 4290, applies to all judgments of reversal. In this case there was such a judgment in express terms. The court below had refused a new trial unconditionally. The unconditional refusal was reversed, and a conditional refusal substituted by instructions. Acceptance of the prescribed terms did not change the reversal into an affirmance. The defendant in error lost his case here; the judgment rendered in his favor below was found to„be erroneous, and to purge it of error, his adversary had to incur the costs now in controversy. He was entitled to get them back. Judgment affirmed.