ON MOTION TO RETAX COSTS.
Opinion delivered May 23, 1908.
Hill, C. J.Buchanan files a motion to retax the costs and apportion the same so that only such costs as accrued on that part of the judgment which gave an ouster and for the emoluments of the office be adjudged against him. As these were the only parts of the judgment which were reversed, he contends that only the costs incident to these features should be adjudged against him. He shows that most of the transcript is taken up with testimony relating to the title to the office — and the copying of this evidence is the heavy item of the costs — and he contends that, as he prevailed on that issue, he should have the costs which were incurred on it.
If the court had discretion in the matter, a strong case for its exercise is made by the motion. The question really is, whether, under section 970 of Kirby’s Digest, there is a discretion to apportion the costs where a judgment of the circuit court is in a material part reversed. The section reads as follows: “If any person shall sue out á writ of error or take an appeal to review the judgment of any circuit court, and the judgment of such court shall be affirmed, or the writ of error or appeal dismissed, discontinued or quashed, or the plaintiff in error, or appellant, be non-suited, the defendant in error, or appellee, shall recover his costs; and if the judgment be reversed, the plaintiff in error, or appellant, shall recover his costs.” Recently, in construing this section, the court said: “On appeals from judgment at law it is obligatory on this court to follow the statute.” American Soda Fountain Co. v. Battle, 85 Ark. 213.
This seems to be the only direct construction of this statute. Malpas v. Lowenstein, 46 Ark. 552, is closely analogous. It arose under another -section of the same act (the act of March 3, 1838), and the court said: “The issue raised by the pleadings in the main action was, debt or no debt, at the commencement of the suit. That issue the jury determined in favor of the defendant, and their verdict was approved by the trial -court. This carried the costs of the ancillary attachment, as well as of the action. The burden of costs was not subject to be adjusted according to the discretion of the presiding judge, as in equity cases. But the statute provides that, when final judgment goes against the plaintiff, the defendant shall recover costs, and the attachment shall be discharged. Mansf. Digest, § § 1043, 378.”
So far as the court has been able to ascertain, it has been the uniform practice of this court to adjudge all the costs of the appeal from the circuit court against the appellee where the appellant succeeds in obtaining any substantial or material reversal of the judgment. -There are a few cases to be found where the court has decided that they did not fall within the statute, and has refused costs to the appellant where there has been a partial reversal. These have been cases that stood upon their own peculiar facts, taking them without the statute; but they all contain recognition of the general practice which prevailed. Ozark Ins. Co. v. Leatherwood, 79 Ark. 252, is such a case.
Notwithstanding the settled practice, 'the appellee insists that the court has discretion in the matter, and should exercise it here. Numerous Cases are cited where the court has disallowed the costs of the appeal for defects in the abstract and brief or transcript; but these cases all depended upon the rules of the court, and not upon the statute, and afford no analogy in practice or principle to the question at bar. Appellee also cites Davies v. Robinson, 65 Ark. 219, and Meadows v. Rogers, 17 Ark. 361. But these cases go to the right of the circuit court to disallow unreasonable or unnecessary costs, which is also based upon another principle.
The only other authorities cited are 5 Enc. Plead.- & Prac. 192, and Ayers v. Western Railroad Corp., 49 N. Y. 660, and Sugar Pine Lumber Co. v. Garrett, 42 Pac. 129 (28 Ore. 168).
The Encyclopedia says that the discretion of the appellate court in adjudging costs is absolute except in so far as may be limited by statute. Ayers v. Western Railroad Corp., 49 N. Y. 660, is a mere memorandum decision, apportioning costs without giving a reason therefor. But when the New York statute is looked to, the reason is found. It was held in Chipman v. Montgomery, 63 N. Y. 221, that where the statute did not permit discretion in the appellate court the right of the prevailing party to recover costs was absolute, but that the Code had provided a certain class of actions' wherein the court was given discretion to apportion them.
In Sugar Pine Lumber Co. v. Garrett, 42 Pac. 129, 28 Ore. 168, the costs were apportioned because the statute permitted it. The Oregon statute on this subject reads as follows: “But when on an appeal to the supreme or circuit court a new trial is ordered, or a decision given modifying the judgment appealed from, the costs on appeal shall be allowed or not, in the discretion of- the appellate court.” Hill’s Anri. Laws of Ore., 552. It is thus seen that none of these authorities sustain appellee’s contentions. On the other hand, there are authorities sustaining American Soda Fountain Co. v. Battle, supra. In Wisconsin the statute provides that the prevailing party is entitled to the costs, and it is held that the statute is -mandatory, and leaves no discretion in the appellate court. Smith v. Wait, 39 Wis. 512; First National Bank v. Prescott, 27 Wis. 616.
In Illinois it was held, where the statute expressly gives costs, and the case does not fall within a class where the statute authorizes apportionment, that it was error co ajpportion the costs. St. Charles v. O’Mailey, 18 Ill. 407. This is the rule in New York under a similar statute. Chipman v. Montgomery, 63 N. Y. 221.
The reason for these decisions is plain: The right to recover costs did not exist at common law, but rests upon statute only. Wilson v. Fussell, 60 Ark. 194; State v. Gowen, 12 Ark. 62. Thetefore the statute must be pursued because it is the only guide which the court has, as it has no inherent right to award or apportion costs.
The rule is different in equity, because it has always been a principle of equity jurisprudence that the disposition of costs was in the discretion of the chancellor. State v. Fort, 18 Ark. 202; Temple v. Lawson, 19 Ark. 148; Jones v. Graham, 36 Ark. 383. And.it will be noticed that the statute in question does not reach to appeals from the chancery court, but is limited to appeals and writs of error from the circuit court.
The court concludes that the practice of this court has been the right practice under the statute, and declines to deviate from it.
The motion is overruled.
Mr. Justice Wood dissents.