Challenger, Inc. v. Robert S. Durno

245 F.2d 815

CHALLENGER, Inc., Appellant,
v.
Robert S. DURNO, Appellee.

No. 16438.

United States Court of Appeals Fifth Circuit.

June 19, 1957.

Arthur Roth, Miami, Fal., Franklin S. Dodd, Brownsville, Tex., Jacob Rassner, New York City, Rassner, Miller & Roth, Miami, Fla., for appellant.

Paul Y. Cunningham, Brownsville, Tex., Sharpe, Cunningham & Garza, Brownsville, Tex., for appellee.

Before BORAH, RIVES and BROWN, Circuit Judges.

PER CURIAM.

1

Since this appeal from an award of costs in appellee's (libellant below) favor does not question the power or right of the trial court to so rule, cf. McWilliams Dredging Co. v. Department of Highways, 5 Cir., 187 F.2d 61; Kemart Corp. v. Printing Arts Research Laboratories, 9 Cir., 232 F.2d 897, it falls within the long-established general rule that an appeal does not lie from a decree solely for costs. DuBois v. Kirk, 1895, 158 U.S. 58, 67, 15 S. Ct. 729, 39 L. Ed. 895, 899; McWilliams Dredging Co. v. Department of Highways, supra.

2

Appellant seeks to escape the operation of this rule on the grounds that the award was in violation of the mandate1 ] of this Court on the prior appeal, Challenger, Inc. v. Durno, 5 Cir., 227 F.2d 918, 922,1956 A.M.C. 111. But as the trial judge correctly recognized in making the award presently under attack, our mandate clearly and in positive language referred only to the costs of the appeal and did not purport to circumscribe the trial court's action in adjudging and fixing costs under the original decree of the trial court which, except as modified by our opinion, remained effective.

3

The appeal must be dismissed; costs of this appeal to be borne by appellant.

4

Dismissed.

1

'Accordingly the decree is modified, with interest on the reduced amount, Appellant to recover costs of the appeal; otherwise affirmed.'