Shima v. Brown

EDGERTON, Associate Justice.

Appellee Brown recovered a judgment against appellant Shima in a suit for board and room. On a former appeal, this court modified the judgment in regard to interest.1 Shima now appeals from a subsequent order of the trial court which awarded interest from the date of the original judgment, and which also taxed appellant with all costs.

Trial courts have large discretion in regard to costs, and it is not the function of appellate courts to substitute their own discretion.2 This court has repeatedly applied this rule.3 Perhaps taxing part of the costs against the prevailing party may be an abuse of discretion when there are no special circumstances to justify it.4 But in the present case the court taxed all costs against the losing party, in accordance with the usual practice.5 It is true that appellant had offered and appellee had rejected a compromise settlement which was only a few hundred dollars less than the amount that appellee afterwards recovered. It does not follow that it was an abuse of discretion to tax all costs against the losing party.6

Although we stated, on the former appeal, that the original judgment was “modified,” 7 we remanded the case with a “ ‘direction to enter a judgment for * * * the damages assessed by the jury, with interest on such judgment from the time it shall be entered until it shall be paid.’ ” The intent of this direction was that a new judgment was to be entered which should include no interest for any period prior to the date on which it was entered. The law of the case is that appellant is not liable for any interest prior to the date on which a correct judgment against him is entered. The judgment now before us, like the previous one, is erroneous in that it includes interest prior to its date. If, as we were told in the hearing of this appeal, appellant has satisfied his prin'cipal obligation as found by the jury, the entire judgment should be treated as fully satisfied. If any part of the principal has not been paid a new judgment should be entered for that part, without interest prior to its date. Costs on this appeal will be divided.

Affirmed in part,

Reversed in part.

1 Shima v. Brown, 77 U.S.App.D.C. 115, 133 F.2d 48, cert. denied, 318 U.S. 787.

2 Newton v. Consolidated Gas Co. of New York, 265 U.S. 78, 44 S.Ct. 481, 68 L.Ed. 909; Blassengame v. Boyd, 4 Cir., 178 F. 1, 21 Ann.Cas. 800; Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316.

3 Washington & Georgetown Railroad Co. v. American Car Co., 5 App.D.C. 524, 548; Burlingame v. Manchester, 44 App.D.C. 335; Ruby Lee Minar, Inc., v. Hammett, 60 App.D.C. 291, 53 F.2d 149, certiorari denied, 284 U.S. 682, 52 S.Ct. 200, 76 L.Ed. 576; Moran v. Washington Ry. & Electric Co., 64 App.D.C. 3, 73 F.2d 384.

4 Duke Power Co. v. Greenwood County, 4 Cir., 91 F.2d 665, affirmed without discussion of this point, 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381.

5 Federal Rules of Civil Procedure, Rule 54(d), 28 U.S.C.A. following section 723c.

6 The offer in question was not made until the suit was under way and a good part of the costs had been incurred. Appellant’s previous offers were considerably smaller. This and other circumstances distinguish the case from United States v. E. J. Biggs Construction Co., 7 Cir., 116 F.2d 768, 775.

7 The Supreme Court used this term in similar circumstances. New York, Lake Erie & Western Railroad Co. v. Estill, 147 U.S. 591, 622, 13 S.Ct. 444, 37 L.Ed. 292.