State ex rel. Perkins v. Miller

MONROE, J. The relator invokes the supervisory jurisdiction of this court, by means of the writs of certiorari and prohibition, for the correction of an error, patent upon the face of the record, in the suit entitled “Mrs. Mary Delasalle vs. George-Perkins,” No. 3,927 of the docket of the Fifteenth judicial district court. It appears that Mrs. Delasalle sued Perkins, relator herein, in a justice court, for “thirty dollars, damages on a buggy,” and obtained a judgment for “the sum of two dollars, with interest thereon at the rate of 5% per annum from the 15th of May, 1901, together with the costs of suit,” from which judgment she alone appealed, and that after trial in the district court, without further pleading, save a motion to dismiss by the appellee, there was judgment, read and sign [241] ed in open court, November 5, 1902, “in favor of said plaintiff and against said defendant, in the sum of two dollars, with five per cent, interest from date of appeal, to wit, the 5th day of November, A. D. 1902, and for costs of suit.” The relator upon the same day notified the respondent judge of his intention to apply to this court for relief, and thereafter filed the present proceeding, in which he complains that, the judgment appealed from having been affirmed, he is illegally condemned for costs of the appeal. It was said in Elms v. Wright-Blodgett Co., 106 La. 31, 30 South. 320: “Plaintiff having appealed the case, * * * and being cast on the appeal, in the sense that no change in the judgment to his advantage was made, the judgment being simply affirmed, the law itself carries the costs against him. Code Prac. arts. 157, 549, 551, 523. They are incidental to the judgment. St. Romain v. Robeson, 12 Rob. 194. An apI>ellant is to pay the costs of appeal where the judgment is affirmed. Code Prac. art. 907.” In the instant case the judgment appealed from seems to have been slightly altered in the district court (in the matter of the interest allowed) to the disadvantage of the appellant. A fortiori, therefore, should she, not the appellee, pay the costs of the appeal. It is therefore ordered, adjudged, and decreed that the respondent judge be, and he is hereby, instructed to amend the judgment complained of in accordance with the views herein expressed.