McCord v. Doniphan Branch Railroad

Rombauer, J., delivered the opinion of the court on motion to re-tax cost. This motion prays for alternative relief. We are asked either to tax the costs of this appeal against the appellant, or otherwise to permit the respondent to withdraw his remittitur, and remand the cause for a new trial. If the question presented were one of first impression, We would permit a withdrawal of the remittitur, and modify the judgment by remanding the cause for a new trial. The question, however, is not one of first impression. The supreme court has decided in a number' of cases that where the appellant succeeds in part in the appellate court, whether it be reducing the judgment in amount, or in causing it to be modified in any other manner to his advantage, he is entitled to recover the costs of the appeal. Miller v. Hardin, 64 Mo. 545; Clark v. Bullock, 65 Mo. 535; Higgs v. Hunt, 75 Mo. 106; Von Schreder v. Taylor, 22 Mo. App. —, mandate as to costs. The recent decisions of this court have also been uniformly to that effect. Leary v. Peoples' Ry. Co., 16 Mo. App. 561, on motion to tax costs; West v. Creve Coeur Lake Ice Co., 19 Mo. App. 547; Ames v. Scudder, 20 Mo. App. 54; opinion on motion to re-tax costs ; State to use Hayden v. McHale, 22 Mo. App.-; judgment on motion to re-tax costs. The motion is overruled. All the judges concur.