Opinion
16966.
FEBRUARY 15, 1950.
Mandamus. Before Judge Nichols. Walker Superior Court. November 7, 1949.
Fariss Fariss and Shaw Shaw, for plaintiff in error.
Gleason Painter, contra.
When this litigation was here before in Murphey v. Brock, 206 Ga. 9 ( 55 S.E.2d 564), we substantially modified the judgment then complained of, as our opinion clearly shows, and on the return of the remittitur to the trial court, the judgment of that court was accordingly amended; but the costs of bringing the case to this court, and those accruing here, were taxed against the plaintiff in error. That judgment is directly excepted to on the ground that the court erroneously fixed the costs; the contention being that the judgment for such costs should have been against the defendants in error. Held:
1. For the reason assigned, the judgment complained of is unquestionably erroneous. This court has consistently and quite frequently held that, where the plaintiff in error obtains, as he concededly did in this case, a substantial modification of the judgment complained of, he is entitled to have a judgment against the opposite party for the costs of bringing the case to this court for review and those accruing here. Green v. Green, 138 Ga. 581 ( 75 S.E. 603); Anderson v. Beasley, 169 Ga. 720 ( 151 S.E. 360); Ball v. Moore, 181 Ga. 146 ( 182 S.E. 28); Ross v. Rambo, 195 Ga. 100 ( 23 S.E.2d 687).
2. Since the costs in question were improperly taxed against the plaintiff in error, the judgment complained of must be amended by taxing them against the defendants in error, and the trial judge is directed to do so.
Judgment reversed with direction. All the Justices concur.