Klopfer v. Werber

264 Md. 419 (1972) 286 A.2d 776

KLOPFER
v.
WERBER

[No. 204, September Term, 1971.]

Court of Appeals of Maryland.

Decided February 9, 1972.

The cause was argued before HAMMOND, C.J., and BARNES, FINAN, SINGLEY and SMITH, JJ.

Rose M. Mattingley for appellant.

Thomas A. Farrington, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellee.

HAMMOND, C.J., delivered the opinion of the Court.

In Werber v. Klopfer, 260 Md. 486, we reversed the judgment Klopfer had obtained in his suit for libel against Werber. The mandate contained the notation "Judgment entered in favor of the appellant [Werber] against the appellee [Klopfer] for costs in this Court and in the court below."

Maryland Rule 882 provides: "In all cases in this Court the awarding of costs shall be in the discretion of this Court, but unless it is otherwise ordered by this Court costs shall be awarded against the losing party." Rule 832 says that:

"Within ten (10) days, after the filing of a party's last brief, the party shall file with the Clerk, and serve on each counsel of record on the opposite side, a statement of printing costs which shall show the costs of printing the party's brief and appendix, printed extract or reply brief, if any, itemized to indicate printing cost per page, cost of covers, any additional time, or the like, and the total cost of printing."

Counsel for Werber did not follow the directions of Rule 832; indeed, we inferred from his oral argument that his acquaintance with that Rule had begun a few hours earlier. As a result when the Clerk, following the procedures of Rule 876, sent out the mandate thirty days after the filing of the opinion (paragraph b of Rule 876) the statement of costs called for by paragraph c of Rule 876 did not show the cost of Werber's brief ($836.88) — the notation on the mandate in the space that customarily would have had a dollar figure was "not supplied," and did not contain an item of $40.00 of lower court costs paid by Werber. We were moved by Werber to amend the mandate and we refused to do so for the reason that he had been the author of his own misfortune in attempting to sail the Maryland appellate seas without using the compass of the Rules. He thereupon filed a motion in the trial court for judgment against Klopfer for the sums of $836.88 and $40.00, and the trial court entered an order that Klopfer pay $836.88 and $40.00 as part of the costs of this case. We think the Circuit Court lacked the power to so order and we will reverse.

Rule 876 a makes the mandate the sole formal evidence of the final actions of this Court in every case. Paragraph c of Rule 876 shows that the statement of costs "taxable to the appellant and to the appellee and of the order of this Court awarding costs" is an integral part of the mandate. It is incumbent upon the parties to make known to the Clerk the costs they have incurred if those costs are to become part of the order of this Court evidenced by the mandate. The award of costs is of those costs shown in the mandate and if a party does not make known to the Clerk in due time the amount of each of his costs, he is deemed to have waived or abandoned his claim to repayment of any cost not furnished the Clerk.

Rule 876 d says: "When the mandate has been transmitted the lower court shall proceed according to the tenor and directions thereof." The lower court in this case did not heed this Rule but assumed a power it did not have. In Getz v. Johnson, 145 Md. 426, 433, Judge Mitchell Digges for the Court said:

"This involves an inquiry as to whether this Court, by its opinion and mandate in the former case, reported in 143 Md. 543, did or did not award the costs.

* * *

"If it did, it is equally well settled by reason and authority that the Circuit Court of Baltimore City was bound to respect, and give validity to, such award, it had no discretion as to the payment of costs, and could pass no valid decree or order in respect thereto, which was not in conformity with the opinion and mandate of this Court. Maloy v. McLean, 140 Md. 306."

Order reversed, costs to be paid by appellee.