Bay View Estates Corp. v. Southerland , 126 Fla. 239 ( 1936 )

This appeal was decided April 30, 1934 (rehearing denied June 7, 1934) Bay View Estates Corp. v. Southerland, 114 Fla. 635,154 Sou. Rep. 894. Motion to tax costs of appeal in the Supreme Court was filed April 9, 1934, the cost claimed being as follows:

Preparation of transcript ........ $121.50 Clerk's cost of verification ..... 28.80 Filing fee Supreme Court ......... 12.00 Postage on transcript ............ 1.71 Binding 3 copies transcript ...... 2.25 ------- Total ........................ $166.26

The mandate issued June 28, 1934, without action having been taken on appellants' motion to tax costs.

It is the duty of parties to a cause in the Supreme Court to file in each case a statement of the items of cost they are entitled to recover in the cause, and upon failure to do so the Court will not, after the expiration of the term at which the cause was disposed of, order a retaxation of costs that have been taxed and entered in the appellate judgment disposing of the appeal, so as to include items not shown by the record or files in the cause at the time the costs were taxed to have been erroneously omitted from the costs as taxed and entered in the Supreme Court's judgment disposing of the cause in the appellate court. McGourin v. DeFuniak Springs, 52 Fla. 556,42 Sou. Rep. 187. See also: Henderson v. Morton, 114 Fla. 4,152 Sou. Rep. 712.

In Henderson v. Morton, supra, it was held that the costs of verifying and certifying a proper transcript, together with cost of preparation of one copy thereof necessary to be served on opposing party, as well as cost of transmitting the copy of the transcript to the Clerk of the Supreme Court, are recoverable on appeal when duly moved for at the term at which the cause was decided.

The record shows that $121.50 cost is claimed to have been incurred by appellant for preparation of 243 pages of the original together with two copies of the transcript. The cost recoverable is for the original and one copy only at a rate not exceeding the statutory fees of the Clerk of the Circuit Court for preparing and verifying the original transcript, together with the cost of one copy of same to be served on appellee. There is no data before this Court at the present time on which the amount due can be computed, with the exception of the item of $28.80 for verifying the transcript as paid to the Clerk of the Circuit Court for that service. The item of $12.00 for docketing fee in the Supreme Court, together with $1.71 postage on the transcript mailed to the Clerk for that purpose, is within the rule hereinbefore stated and is recoverable without further proof.

Upon consideration of the pending motion for a taxation of the recoverable costs of appeal to be included in the judgment and mandate of this Court it is now held that appellant is entitled to have and recover as costs of its appeal herein the cost of preparing and having certified by the Clerk of the Circuit Court one original copy of the transcript of the record consisting of 243 pages, together with the cost of preparing one copy thereof (uncertified) for service upon appellee, the aggregate thereof not to exceed the costs that would have been payable to the Clerk of the Circuit Court for such original and copy had appellant not proceeded in accordance with Chapter 9281, Acts 1923 (Sections 4627-4632 C.G.L.) and that in addition thereto appellant do have and recover its docketing fee of $12.00 and postage in the sum of $1.71 for transmitting the transcript of the record to this Court. The item of $2.25 for binding three copies of the transcript is disallowed on the ground that the cost of preparation and certification of the transcript is deemed to include the appropriate binding of the same for the purpose of filing it.

It is ordered that a copy of this opinion be certified to the Circuit Court with directions to said Court to cause to be ascertained and included in the mandate on file in said Court the amount of recoverable costs herein held to be recoverable and taxed as part of the costs of appeal herein, this order to be considered as a part of said mandate when lodged in the Circuit Court.

WHITFIELD, C.J., and BROWN, J., concur.

ELLIS, P.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.