Opinion
No. 1993.
April 26, 1967. Rehearing Denied May 18, 1967.
APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, LAFAYETTE PARISH, JEROME E. DOMENGEAUX, J.
Simon, Trice Mouton, by John Rixie Mouton, Lafayette, for defendant-appellant.
Koury Judice by Joseph Koury, Lafayette, for plaintiff-appellee.
Before TATE, SAVOY, and HOOD, JJ.
The only question presented by this appeal concerns liability for court costs in earlier proceedings between the parties. See La. App., 177 So.2d 182 and 185 So.2d 848. The defendant Simon appeals from the trial court's determination that he is not entitled to collect certain court costs from the plaintiff (Ashy). The decision of the essential issue depends upon the interpretation of our judgment in one of the earlier proceedings (that reported at 185 So.2d 848).
In the original proceeding, Ashy sued Simon and a codefendant Ducharme to enforce a lien for materials furnished Ducharme for improvements to Simon's home. Ashy Lumber and Ducharme compromised this suit. On Simon's appeal, we held that the judgment of dismissal had improperly assessed him with some of the court costs and that he was free of liability for any of them. 177 So.2d 182.
Subsequent to this decision of ours, the defendant Simon filed a rule to tax certain depositions, etc., as the costs of the original proceeding. On an appeal to us, referring to the "costs of depositions in the amount of $175.61", we held that " these items are taxed as costs." 185 So.2d 848, 851. By this statement, we of course meant that such items were to be taxed as costs of the original proceeding.
By this opinion, we did not hold that the plaintiff Ashy was to be taxed with these costs of the original proceeding. (The record indicates that these are taxed to the codefendant Ducharme.) There is no indication in our opinion that we intended to alter the ultimate responsibility for court costs of the original proceeding as fixed by the trial court.
Nevertheless, the defendant Simon contends that by our decision in this second proceeding we held Ashy liable for the $175.61 court costs there in question.
These third proceedings now before us were initiated when the defendant Simon had issued a writ of fieri facias to collect from Ashy this sum of $175.61 taxed by us as court costs ( not against Ashy) in the original proceeding. In so doing, Simon relies upon the concluding sentence of our opinion in the second proceeding: "All costs of this proceeding, both in the district court and on appeal, are assessed against plaintiff." 185 So.2d 848 at 851.
By this sentence, we plainly intended to hold the plaintiff liable only for the costs of " this [i. e., the second] proceeding", namely, the rule by Simon to tax the depositions, etc., as court costs of the original proceeding (which costs are taxed to Ducharme, not Ashy). The record shows that Ashy has paid in full the ($119.20) costs of this second proceeding, the only costs with which Ashy was taxed by our opinion in such second proceeding.
We therefore affirm the holding of the District Court in all respects, including its ruling that the plaintiff Ashy is not liable for the $175.61 court costs sought from it by the defendant Simon. All costs of this appeal are assessed against the said defendant-appellant.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied.