Opinion
On Petition to Rehear March 11, 1960.
Schoolfield, Eavess&sTaylor, James E. Carroll, Chattanooga, for plaintiff in error.
Thomas E. Fox, Asst. Atty. Gen., for the State.
SWEPSTON, Justice.
John Kasper has filed a written motion wherein this Court is requested to vacate that part of its judgment entered on July 27, 1959, in which, in accordance with T.C.A. § 40-1234, it was ordered 'that the cash bond now on deposit with the Criminal Court Clerk be held until said fine and costs are paid, and upon failure of defendant to pay said fine and costs, same is hereby ordered, adjudged and decreed by the court to be paid out of the said Twenty Five Hundred Dollars cash bond as authorized by Sec. 40-1234 of the Tennessee Code Annotated, Supreme Court costs $614.60, Criminal Court Clerk's costs, including, $801.65, balance to be held until defendant is in custody.'
In support of said motion it is further stated: 'The Court in relying on Section 40-1234 of the Tennessee Code, Annotated, must have erroneously been under the impression that the cash bond posted for appellant's appearance represented appellant's own money.
This is not the case, and during the entire time appellant has been in bond, his appearance has been secured by a bondsman; in other words a third party.'
This motion must be disallowed on the authority of State v. Ross, 100 Tenn. 303, 45 S.W. 673; the fine and costs adjudged against a defendant will be retained and paid out of a fund deposited by, or on his behalf, regardless of whose money it may be.
This type of statute is universally so construed. 7 A.L.R. 389.
Motion disallowed.
On Motion to Retax Costs Claimed by Clerk of the Criminal Court
A petition has been filed herein by John Kasper seeking to have retaxed the amount of $503.60 listed by the Clerk of the Criminal Court as costs of appeal. It is alleged that the Clerk neither incurred nor earned any such costs by reason of the fact that by agreement the Clerk used a carbon copy of the testimony which went into the bill of exceptions. Further, that Paul Bumpus, the Assistant Attorney General for Davidson County had stated in open court that such was the fact, that Judge Weimar had taken the matter under advisement but had done nothing about it.
Under the cases of State v. Goodbar, 76 Tenn. 451; Troutt v. Alabama G. S. Railroad Co., 97 Tenn. 364, 37 S.W. 90; State v. Richards, 120 Tenn. 477, 491, 113 S.W. 370, we regret that in the condition of this record at the present time, we are unable to afford any relief. Those cases Hold, that the taxation of costs belongs to the court in which the costs are incurred and in order for an appellate court to have jurisdiction to act with reference to costs incurred in a lower court, it is necessary not only that a motion to retax be made in the lower court but that there be obtained the opinion of that court on the motion and a judgment entered of record. That is, our jurisdiction is purely for the purpose of the correction of errors appearing of record. Hence, it will be necessary for petitioner to obtain action of the trial judge as a prerequisite to seeking relief in this court.
Motion denied.
On Petition to Rehear and Amended Petition to Rehear the Motion to Vacate and Set Aside Judgment Concerning Payment of Fine and Costs
The petition to rehear and the amended petition to rehear the motion to vacate and set aside the judgment concerning the payment of costs in the above styled case have been fully considered and found to be without merit. The same are overruled.