Opinion
No. 60-652.
January 26, 1962.
Appeal from the Circuit Court, Dade County, Robert H. Anderson, J.
Kelner Lewis and Fred Patrox, Miami, for appellant.
Dean, Adams, Fischer Gautier and Jeanne Heyward, Miami, for appellees.
Before PEARSON, TILLMAN, C.J., and HORTON and CARROLL, JJ.
A petition was presented under F.A.R. 3.16(c), 31 F.S.A., to review a judgment for costs. The petitioner had filed an action at law. The case came on for trial before a jury. A verdict was directed for defendants, and plaintiff appealed. As required by F.A.R. 3.2(f), prior to taking the appeal plaintiff paid a cost judgment which had been entered by the trial court. We reversed the judgment entered on the directed verdict, and remanded the cause for a new trial (Abrams v. Gresham, Fla. App. 1961, 131 So.2d 207). The plaintiff-appellant moved in the trial court to have the appellate costs taxed, pursuant to F.A.R. 3.16(b), and submitted an affidavit listing the following:
"Filing Fees $28.50 Satisfaction of Defendants' Cost Judgment 107.90 Original and copy of trial transcript 129.20 Cost of Certifying Record 8.50 ________ Total $274.10" Of the foregoing, the court disallowed the item of $107.90 representing the amount paid to satisfy the cost judgment in the trial court prior to appeal. Petitioner contends that amount should have been recognized and allowed as a cost of his appeal. Respondents argue the order was correct because such costs should await the ultimate outcome of a second trial and because the original cost judgment paid prior to the appeal was not assigned as error. We hold those contentions of the respondents are without merit for the reason that in a similar situation the Supreme Court treated such a payment as an appeal cost and allowed it in taxing costs following appeal. See King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; and King v. Weis-Patterson Lumber Co., 127 Fla. 109, 172 So. 693.Therefore, on the authority and example of the King case, we hold that the able trial judge was in error in failing to include in his order taxing costs the said amount of $107.90 paid by the plaintiff-appellant as a prerequisite to filing the appeal, and the cause is remanded with directions to the trial court to amend the cost judgment to include said sum.
It is so ordered.