Owen v. Lee , 185 Va. 160 ( 1946 )

Hudgins, J.,

dissenting in part.

Code of 1919, sec. 3528, provides: “In every case in an appellate court, costs shall be recovered in such court by the party substantially prevailing.” The decrees, referring the controversy to a commissioner for his findings and report, contain thirteen specific items and include numerous disbursements made by the executor. The final decrees decided each of these thirteen questions. If there had been no appeal from these decrees, appellants would have had to pay approximately $6,700 before they would have obtained complete title to the real estate devised them. Mrs. Rose Simmons Owen would have been compelled to pay approximately $600, with interest from January 1, 1942, as rent for the residence claimed to have been unlawfully withheld from the widow.' The majority opinion declares that the rulings of the trial court on these two specific questions are erroneous.

I do not construe the statute to mean that an appellant must be sustained on each and every error assigned before it can be held that he substantially prevailed in the appellate court. The mere fact that the decision of the trial court is affirmed in all other particulars does not contravene the self-evident fact that the appellants have substantially prevailed in this court. Therefore, the mandate of the statute should be followed and the costs should be awarded against the appellee, Eudora Eva Whitlow Simmons Lee. See cases cited in annotations to Michie’s Code 1942, sec. 3528.

I agree with the other principles stated in the majority opinion.