Dodge v. Lake Shore & Michigan Southern Railway Co. , 45 Ind. App. 281 ( 1910 )

Roby, J.

Appellant’s decedent filed his written consent to act as and become the next friend of a minor plaintiff in an action against the appellee. Such proceedings were had therein as resulted in a judgment against appellee in the trial court, which was reversed by the Supreme Court, and judgment ordered for appellee on the answers to interrogatories. Lake Shore, etc., R. Co. v. Peterson (1896) 144 Ind. 214.

The judgment of the Supreme Court provided that appellee recover its costs, taxed at $260, of which sum $43.25 was paid by decedent. After said cause was remanded, the trial court, in accordance with the mandate of the Supreme Court, rendered judgment that the plaintiff take nothing from the defendant, and by agreement a motion to tax costs was continued. Subsequently the parties appeared, and the court made an entry as follows: ‘ ‘ It is thereupon ordered by the court that all costs in this behalf accruing prior to November 7, 1893, be and the same are hereby taxed to Peter Johnson, who was the next friend to the plaintiff, to that date, and that all costs after November 7, 1893, be and the same are hereby taxed to Henry C. Dodge, next friend to the plaintiff after said date. ’ ’ The costs taxed in favor of the claimant herein which accrued in said cause after November 7, 1893, were taxed at $461.85, which said costs consisted of the costs of the Supreme Court hereinbefore mentioned, including the $260 mentioned in the judgment of reversal by the Supreme Court, less $43.25 paid by decedent in his lifetime.

1. The appellant contends that the record does not show a judgment against her decedent for costs. The language of the record in its entirety leaves nothing for further consideration, and must therefore be regarded as a final judgment. State, ex rel., v. Lung (1907), 168 Ind. 553.

2. The appellant’s objections are formal. By the express terms of the statute decedent was responsible for the costs of the action. §257 Burns 1908, §256 R. S. 1881. See Whitiem v. State (1871), 36 Ind. 196.

3. 4. 5. The amount of the judgment for costs rendered by the Supreme Court was included in the judgment thus rendered by the circuit court. Such action could in nowise vacate or discharge the judgment of the Supreme Court, but inasmuch as the “theory of the case” doctrine does not apply to claims against decedents’ estates (Stanley’s Estate v. Pence [1903], 160 Inch 636), and as the payment of this claim will be a complete bar to any future recovery, it is not apparent that appellant is in anywise harmed, and it is only for substantial error that judgments can lawfully be reversed. §§407, 700 Burns 1908, §§398, 658 R. S. 1881.

6. Appellee expresses a willingness to remit so much of its judgment as the court may find excessive. It relies upon a judgment rendered January 11, 1897, and cannot consequently claim interest from an earlier date. The judgment is therefore affirmed, if all interest except that accruing' after January 11, 1897, is remitted, otherwise it is reversed and remanded for a new trial, and costs of this appeal are taxed to the appellee.