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2018 Georgia Code 5-6-5 | Car Wreck Lawyer

TITLE 5 APPEAL AND ERROR

Section 6. Certiorari and Appeals to Appellate Courts Generally, 5-6-1 through 5-6-51.

ARTICLE 1 GENERAL PROVISIONS

5-6-5. Entry of judgment for costs on reversal.

If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.

(Laws 1845, Cobb's 1851 Digest, p. 251; Code 1863, § 4186; Code 1868, § 4225; Code 1873, § 4290; Code 1882, § 4290; Civil Code 1895, § 5591; Civil Code 1910, § 6210; Code 1933, § 6-1704.)

JUDICIAL DECISIONS

Jury trial not authorized under this section.

- Because O.C.G.A. § 5-6-5 was enacted in 1845, the statutory procedure for the recovery of appellate costs was unknown in 1798, the year the Georgia Constitution was enacted, and there was no right to jury trial under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Mize v. First Citizens Bank & Trust Co., 302 Ga. App. 757, 691 S.E.2d 648 (2010).

Costs on appeal were controlled by former Code 1933, § 6-1704 (see O.C.G.A. § 5-6-5) rather than Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54). Barnett v. Thomas, 129 Ga. App. 583, 200 S.E.2d 327 (1973), disapproved sub nom. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).

Reporter's transcript and clerk's record are included in costs of appeal.

- Reporter's transcript and clerk's record are both required for effective appeal and both are included in costs of appeal. In event of reversal or substantial modification, appellant is entitled to judgment for these costs on return of remittitur. Barnett v. Thomas, 129 Ga. App. 583, 200 S.E.2d 327 (1973), disapproved sub nom. Stone Mt. Mem. Ass'n v. Stone Mt. Scenic R.R., Inc., 232 Ga. 92, 205 S.E.2d 293 (1974).

Cost of transcript not recoverable.

- Cost of having a transcript prepared by the court reporter is an expense of appeal, but it is not a cost of appeal. An expense of appeal is not recoverable from the appellee when the appellant is successful in obtaining a reversal in an appellate court. Flight Int'l, Inc. v. Dauer, 180 Ga. App. 405, 349 S.E.2d 271 (1986); Gwinnett Property v. G & H Montage, 215 Ga. App. 889, 453 S.E.2d 52 (1994).

When appellate court fails to pass on motion to tax costs, superior court may do so.

- When motion was made that Court of Appeals tax costs of appeal, but that court did not pass upon motion and hence there was no adjudication of question as to how costs should be taxed, assuming that the court had jurisdiction to tax costs, superior court has original and concurrent jurisdiction to pass upon matter. Sweat v. Ehrensperger, 100 Ga. App. 58, 109 S.E.2d 889 (1959).

Motion to recover costs timely filed.

- Appellant was entitled to recover costs, when the appellant's motion for costs, filed 20 days after remittitur was returned and three days after judgment was entered, was filed within "a reasonable time." Department of Medical Assistance v. Llewellyn, 197 Ga. App. 231, 398 S.E.2d 256 (1990).

Motion to recover costs not timely.

- Trial court did not abuse the court's discretion in denying an insured's motion for appellate costs under O.C.G.A. § 5-6-5 as the insured filed the motion nearly eight months after the remittur from the appellate court's decision. Ponse v. Atlanta Cas. Co., 270 Ga. App. 122, 605 S.E.2d 826 (2004).

Because the movants failed to timely file the movant's motion for appellate costs within a reasonable time after the return of the remittitur, specifically, three months and twenty days later, and the movant's sought appellate expenses in excess of those allowed under O.C.G.A. § 5-6-5, the movant's motion was properly denied as untimely. Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 639 S.E.2d 352 (2006), cert. denied, No. S07C0570, 2007 Ga. LEXIS 201 (Ga. 2007).

Return of case only for appropriate findings and conclusions, is not judgment of reversal, and plaintiff in error shall not be entitled to judgment for amount of such costs, and there is no error in failure of trial court to tax costs of former appeal to defendant. Greene v. Colonial Stores, Inc., 144 Ga. App. 645, 242 S.E.2d 489 (1978).

Obtaining substantial modification of judgment may entitle one to recovery of costs.

- Judgment of reversal is not essential for recovery of costs by plaintiff in error; if the plaintiff in error obtains substantial modification of judgment complained of, the plaintiff is entitled to costs of appeal. Hartley v. Hartley, 212 Ga. 62, 90 S.E.2d 555 (1955); Sweat v. Ehrensperger, 100 Ga. App. 58, 109 S.E.2d 889 (1959).

Trial court erred in denying appellant's motion for appellate costs following the Court of Appeals' partial reversal of the trial court's grant of summary judgment, which was a substantial modification entitling appellant to fees. Burritt v. Media Mktg. Servs., Inc., 242 Ga. App. 92, 527 S.E.2d 890 (2000).

Judgment of reversal is not essential for the recovery of costs by the plaintiff in error; if the plaintiff in error obtains a substantial modification of the judgment complained of, then the plaintiff in error is entitled to the costs of bringing the case to the appellate court. Barrow County Airport Auth. v. Romanair, Inc., 260 Ga. App. 887, 581 S.E.2d 402 (2003).

Where a trial court found that a rent adjustment by a lessor was invalid under the terms of the lease, but the appellate court reversed the trial court's interpretation of the lease on that issue, affirmed most of the trial court's other rulings, and remanded the case for the trial court to apply the correct interpretation of the lease, the trial court, upon remand, did not err in casting all costs against the lessor, as the lessor's achievement of the partial reversal in the first appeal did not equate to obtaining a substantial modification of the judgment, especially since, upon remand, the trial court still found that the rent adjustment was invalid after applying the appellate court's interpretation of the lease. Barrow County Airport Auth. v. Romanair, Inc., 260 Ga. App. 887, 581 S.E.2d 402 (2003).

Taxing costs for maintaining crossbill of exceptions in criminal cases.

- There is no law by which state can maintain crossbill of exceptions (now cross appeal) in criminal case; and in such case, there being no provision of law for taxing cost against state, cost will be taxed, under § 15-2-44 and this section against solicitor (now district attorney) bringing crossbill. Mill v. State, 2 Ga. App. 398, 58 S.E. 673 (1907), later appeal, 3 Ga. App. 414, 60 S.E. 4 (1908) (decided before enactment of Ch. 7 of this Title).

Acceptance and compliance with condition changing reversal into affirmance.

- Reversal in Supreme Court carries cost against defendant in error, and judgment therefor is proper under this section, though condition changing reversal into affirmance is accepted and complied with. Gunnels v. Deavours, 59 Ga. 196 (1877).

Advance of costs by attorney for plaintiff in error does not defeat levy by plaintiff.

- Levy under execution for costs, issued in name of plaintiff for use of officers of court, is not subject to be arrested by affidavit of illegality on account of fact that attorney for plaintiff advanced costs incurred in appellate court. Harvey v. Long Cigar & Grocery Co., 36 Ga. App. 45, 135 S.E. 222 (1926).

Cited in Murphy v. Drum & Bugle Corps., 55 Ga. App. 293, 190 S.E. 67 (1937); Mendenhall v. Kingloff, 215 Ga. 726, 113 S.E.2d 449 (1960); Wood v. Delta Ins. Co., 101 Ga. App. 720, 114 S.E.2d 883 (1960); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Nail v. Hiers, 116 Ga. App. 522, 157 S.E.2d 771 (1967); Herring v. Ferrell, 137 Ga. App. 156, 223 S.E.2d 213 (1976); Harris v. Collins, 145 Ga. App. 827, 245 S.E.2d 13 (1978); Marshall v. Fulton Nat'l Bank, 152 Ga. App. 121, 262 S.E.2d 448 (1979); Bryant v. Randall, 245 Ga. 200, 264 S.E.2d 231 (1980); Paul v. Jones, 160 Ga. App. 671, 288 S.E.2d 13 (1981); Jamison v. West, 191 Ga. App. 431, 382 S.E.2d 170 (1989); Miller v. Grand Union Co., 250 Ga. App. 751, 552 S.E.2d 491 (2001); Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521, 629 S.E.2d 501 (2006).

RESEARCH REFERENCES

ALR.

- Award of costs by appellate court as affected by subsequent proceedings or course of the action in the lower court, 116 A.L.R. 1152.

Cases Citing Georgia Code 5-6-5 From Courtlistener.com

Total Results: 1

Harris v. State

Court: Supreme Court of Georgia | Date Filed: 2022-05-03

Snippet: 6’8”, and 6’9”. She later estimated his height at 5’6”, 5’8”, or 5’9”, said he weighed about 165 pounds,