III. The appellants prevailed in their suit and should not have been taxed with the costs. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853; United Press Assn. v. McComb Broadcasting Corp., 201 Miss. 68, 28 So.2d 575. Breed O. Mounger, Tylertown; Cassidy, McLain, Alford Pigott, McComb, for appellee.
V. The taxing of any part of the costs against the appellant was an abuse of the Chancellor's discretion, was inequitable, arbitrary and contrary to the law and the evidence, the appellant having substantially prevailed in the Court below. Reinecke v. Gibbs, 196 Miss. 241, 16 So.2d 853; United Press Assns. v. McComb Broadcasting Corp., 201 Miss. 68, 28 So.2d 575; Griffith's Miss. Chancery Practice (2d ed.), Sec. 629. Morse Morse, Gulfport, for appellee.
The court erred in taxing the appellant with any part of the court costs. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853; Code of 1942, Sec. 1579. It is the duty of this Court to reverse the chancellor on his findings of fact where the finding is manifest error, clearly erroneous, plainly or manifestly wrong, against the great preponderance or overwhelming weight of evidence.
Neither party cites any law regarding this cost issue. The leading cases as to costs are: Magee v. Holmes, 220 Miss. 49, 70 So.2d 60 (1954); United Press Associations v. McComb Broadcasting Corp., 201 Miss. 68, 28 So.2d 575 (1947); and Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853 (1944). These cases hold that a plaintiff who obtained substantial recover is entitled to recover costs.
It is elementary that the chancellor has wide discretion in the matter of assessing costs such as here at issue, but this discretion must not be abused. Owen v. Owen, 228 Miss. 534, 88 So.2d 100 (1956); Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442 (1944). The appointment and services of the master were no doubt anticipated at least from the transfer of the matter from the circuit court. It is our view that, while the master may have resolved the issues largely in favor of Nicholas, he was called upon to decide legitimate issues tendered by both parties, and that the charges incurred in his services were properly charged to both parties.
V. The Court erred in taxing one-half of the costs in the Lower Court against the complainants. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853. No counsel for appellee.
V. The Court erred in taxing appellant with one-half of the Court costs. Reincke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442. McFarland McFarland, Bay Springs, for appellee.
The decree is also reversed to the extent that all costs in the lower court and on appeal are assessed against appellee. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442; Lindsey v. Shaw, supra. Reversed and decree here for appellant.
(Hn 8) We find no authority for assessment of the court costs against appellant under the facts of this case. Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853, 18 So.2d 442. The decree of the lower court is accordingly affirmed insofar as it grants to appellant the right to use the said passage-way across the lands of appellees, but it is modified to the extent that she is not required to leave it as it now is but is entitled to have it opened at the expense of appellees by removing the said terrace and tree obstructions to the limit of its former width, after which all repairs and work upon the roadway shall be done by the appellant at her own expense; it is further modified to the extent that appellant is charged with the duty and obligation of closing the gates each time they are opened by herself or the members of her family or by her employees or persons under her control, failing in which she will be liable for the ensuing damage as well as subject to injunctive relief. The decree is affirmed in denying appellant's prayer for removal of the gates, but is modified to the extent that appellees shall not lock the said gates or nail them shut or othe
Reply to Proposition VIII of appellant that the accounts receivable, good will, leasehold interest in land and merchandise not purchased in sale are not within the Bulk Sales Statute: Peters Branch International Shoe Co. v. Gunn, 121 Miss. 679, 83 So. 742; Carnaggio Bros. v. City of Greenwood, 142 Miss. 884, 108 So. 141; B.F. Goodrich Rubber Co. v. Breland, et al., 170 Miss. 107, 154 So. 303. Reply to Proposition IX of appellant that all the costs in this cause including the costs of this appeal should be assessed against the appellee G.D. Bryan and/or the other appellees: Sec. 1583 Code 1942; Sledge v. Obenchain, 59 Miss. 616; Bowles v. Wood, 90 Miss. 742, 44 So. 169; Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853; Liberty Mercantile Co. v. Allen, 134 Miss. 354, 98 So. 774. The opinion on the original submission was as follows: