The opinion upon writ of error in the above entitled case, reported on p. 323, ante, ordering that the judgment of the circuit court in favor of the defendants be set aside and granting a new trial, was filed under date of March 16, 1932. Thereafter plaintiff presented its bill of costs and motion to tax the same, and thereafter an order was entered taxing said costs in conformity with said motion and in the amount set forth in said bill, to-wit, $85.40. The costs thus taxed included among other items the sum of $52.20 "accrued costs, circuit court." After judgment on writ of error the parties by their respective attorneys stipulated that said order taxing costs might be "set aside * * * for the purpose of submitting said cost bill * * * for the determination and decision of the following question: Where a writ of error has been taken to review a judgment of a trial court and judgment is entered in the supreme court in favor of the plaintiff in error, reversing the judgment of the trial court and remanding the cause to the trial court for a new trial, is the plaintiff in error entitled to tax and recover as one of the items of costs upon said writ *Page 431 of error the accrued costs of the circuit court * * *?" Order was thereupon entered in conformity with said stipulation.
Under authority of the opinion of this court in Coulter v.Schofield, reported on p. 426, ante, and for the reasons therein set forth, our answer to the question last above propounded is that section 2553, R.L. 1925, gives plaintiff the right to present allowance of the costs and fees paid by it in the lower court on the removal of said case to this court by writ of error; provided that ultimate liability to pay said item of circuit court costs is determinable by final judgment in the case.
Costs are allowed in conformity with this opinion.