ARNOLD HENRICHSEN, Agent for WEST & CO., LTD., Grand Bassa County, Appellant, v. THOMAS M. MOORE, for his Wife, ROSE A. MOORE, formerly ROSE A. MILLER, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY.

Argued December 17, 1940. Decided December 20, 1940.

If costs of first appeal have been definitely ruled against the unsuccessful party and it is stated in decision remanding case that all subsequent costs are to abide the final determination of the case, costs thus paid by the losing party are not recoverable by him although he may be successful at the retrial.

On appeal to the Supreme Court in 1935, the lower court’s judgment for appellee was reversed and the case remanded for retrial, with costs of that appeal ruled against appellee. On appeal to the Supreme Court in 1938, the lower court’s judgment after retrial for appellee was affirmed, with costs ruled against appellant. In making up the bill of costs after the second trial and appeal, the trial judge ordered the amount which appellee had paid to appellant as costs after the first trial and appeal to be refunded by appellant. On appeal to the Supreme Court, judgment reversed.

Edwin Z. Morgan for appellant. David A. B. Worrell for appellee.

MR. JUSTICE TUBMAN delivered the opinion of the Court.

To test the legal correctness of the act of His Honor the Judge of the Circuit Court for the Second Judicial Circuit in ordering an item of cost in the sum of $37.38 to be inserted in the bill of cost in the above entitled cause to be paid to appellee by appellant as refund cost, this cause has found itself here. Here are the facts in the case appearing from the records:

At the November term of this Court, 1935, an opinion and judgment were handed down in the above entitled cause by us, reversing the judgment of the lower court and remanding the case for retrial, the relevant portions of our opinion which I quote:

“There having been no evidence oral or written adduced to support the claims as set up in the bill, this Court fails to see under what principle of law the judge predicated his said final decree.

“This Court therefore is of opinion that the case should be remanded to be retried according to law; the costs of these appeal proceedings to be paid by appellee, and all other costs to abide final judgment; and it is hereby so ordered.” Henricksen v. Moore, [1936] LRSC 1; 5 L.L.R. 60, 62 (1936). (Emphasis added.)

In keeping with the definitive judgment of this Court just referred to, appellee Moore was required to pay to appellant $37.38, as costs of that trial, and all subsequent costs were to abide final determination of the case.

The cause was eventually retried and appealed a second time here when, by definitive decision of this Court in 1939, costs were adjudged against appellant. I quote also the relevant portion of that opinion :

“This Court is, therefore, of opinion that the decree of His Honor Judge Brownell, rendered August 23, 1938, should be so modified as to include a provision that the agreement between the parties dated September 20, 1938, and the current order on P.Z. & Co., Ltd., or their assignee, to pay the amounts therein specified, shall remain in full force and virtue until the total amount thereof shall have been fully paid to appellants and that said decree should in all other respects be affirmed with costs against appellants; and it is hereby so ordered.” Henrichsen v. Moore, [1939] LRSC 4; 6 L.L.R. 351, 355 (1939).

In making up the bill of costs growing out of this last trial, his honor the judge aforesaid ordered the amount of $37.38, which had been paid by appellee to appellant in the first trial, to be inserted in this bill of costs to be refunded to appellee. Appellant excepted and made the question a subject of submission for our disposition in his bill of exceptions.

The whole question therefore resolves itself into this: Whether the judge below was correct or not in ordering this item of costs to be refunded to appellee by appellant.

This item of costs, $37.38, was definitively imposed on appellee by the decision of this Court in 1936, as a result of the judgment entered in the trial court in his favor having been reversed, and consequently he, being the losing party in that trial, was legally obligated to pay the costs of it. In our decision in 1936, partially quoted herein at p. 121, it was intended that all costs incurred after the payment of the costs imposed on appellee by our judgment of 1936 or, more pertinently, all costs of the retrial of the cause, which had been ordered by that opinion and final judgment, should abide final determination of the retrial, and the reason for this provision is obvious, as under the law the losing party is obligated to pay costs.

In this final trial appellant was the losing party and, hence, all costs of the retrial were adjudged against him, but certainly not the costs of the trial in which he was successful and in which he succeeded in having the judgment of the trial court entered against him and in favor of appellee reversed, for that trial had ended and had terminated in favor of appellant by a definitive judgment of this Court.

We are therefore of the opinion that the judge erred in ordering the sum of $37.38 inserted in the bill of costs for this latter trial ; and as this act was done by his honor the judge on his own motion and as we adhere to the legal maxim, “the acts of the court should prejudice no man,” costs of this appeal should be disallowed ; and it is hereby so ordered.

Reversed.