Opinion
12-01-1825
Mahone v. Long
In this case, the record was brought up by the appellee, and Leigh, his counsel, moved for a dismission of the appeal, and that the fee to the clerk of the Chancery Court for the copy of the record, filed by the appellee, might be taxed in the bill of costs, as a part of the costs of defending the appeal. The appeal was accordingly dismissed, for not having been brought up in time; and, on the question of costs, Judge Cabell, delivered the following as the opinion of the Court.
OPINION
Cabell, Judge.
The appellant in this case, having failed to bring up a copy of the record within the time limited by law, the appellee has filed it, and now prays that the appeal may be dismissed, and that the fee to the clerk of the Chancery Court, for the copy of the record filed by him, may be taxed in the bill of costs, as a part of the costs of defending the appeal.
That fee is, certainly, not a part of the costs of prosecuting or defending the suit in the Court below; and cannot, therefore, be charged by that Court as such. It is an expense which is incurred in the prosecution of the appeal; and it is thrown upon the appellee, by the failure of the appellant to bring up the record. It should, therefore, be charged, as prayed by the appellee, as a part of the costs of defending the appeal.
There is equal reason for applying this rule to those cases also, where the record shall be brought up by the appellant. The rule, therefore, will be general; that the party who has filed the record here, will, in all cases where he recovers his costs here, have the fee for the copy of the record filed, charged as a part of his costs in prosecuting or defending the appeal.