"Trial courts have large discretion in regard to costs, and it is not the function of appellate courts to substitute their own discretion"
How later courts described this case
- "Trial courts have large discretion in regard to costs, and it is not the function of appellate courts to substitute their own discretion"
Written by the judges who cited it.
The opinion
MILLER, Associate Justice
(concurring)-
If, when our mandate went down, following the former appeal, a new judgment had been properly entered, presumably it would have been promptly paid. Under such circumstances no interest upon the judgment would have been payable. The only different effect of Judge Groner’s proposed disposition of the case, therefore, would be to require payment, by appellant, of interest upon the second incorrect judgment from the date of its entry to the date of payment. Surely, there is no reason for inflicting such a penalty upon appellant who was innocent of participation in the entry of either incorrect judgment, and who appealed from each to secure correction of similar errors.
Judge Groner’s argument runs, not against the conclusion expressed in the majority opinion but against the decision of the Supreme Court in the Estill case, 1 which provided the pattern for our earlier decision. At the end of its opinion in that case the Supreme Court spelled out, in italics, both the law of the case and the exact procedure to be followed by the trial court, as follows: “The judgment * * * is affirmed as to the $8,750 damages; but it is not affirmed as to the amount of interest, or any part thereof, * * *. That judgment is modified as to such interest, and the case is remanded to the court below, with a direction to enter a judgment for the plaintiffs for $8,750, * * * with interest on such judgment from the time it shall he entered until it shall be paid, * * *.” 2 [Emphasis supplied]
If Judge Groner’s contention were correct, the Supreme Court, in the Estill case, should have required the trial court to “correct its partially erroneous judgment so as to allow interest only from the date it entered the judgment.” And, if his conclusion were correct, that should have been the direction of our mandate following the earlier appeal. But the law is as laid down in the Estill case and as stated in Judge Edgerton’s opinion, that there is no liability for interest prior to the date on which a correct judgment is entered.
New York, Lake Erie & Western R. Co. v. Estill, 147 U.S. 591 , 13 S.Ct. 444 , 37 L.Ed. 292 .
Id., 147 U.S. at page 622 , 13 S.Ct. at page 456 , 37 L.Ed. 292 .