Sheriff's expenses.

- Necessary and reasonable expenses of a sheriff in seizing property and caring for the property are to be levied. Eskind v. Harvey, 20 Ga. App. 412, 93 S.E. 39 (1917).

Costs do not embrace expenses involved in taking depositions. Almand v. Atlantic Coast Line R.R., 118 Ga. 468, 45 S.E. 302 (1903).

Assessment of costs constitutes no part of verdict, but is duty of court. Markan Realty Co. v. Klarman, 99 Ga. App. 703, 109 S.E.2d 907 (1959).

Decree assessing costs of court against one of parties is final decree, which the trial court is without authority to enter at an interlocutory hearing on an interlocutory matter, such as the grant or denial of an injunction. Kight v. Gilliard, 214 Ga. 445, 105 S.E.2d 333 (1958).

This section applies only to actions at law; in equity, the judge may apportion the costs as the judge sees fit. Lowe v. Byrd, 148 Ga. 388, 96 S.E. 1001 (1918); Lavender v. Shackelford, 152 Ga. 363, 110 S.E. 1 (1921).

There can be no apportionment of costs in an action at law. Story v. Howell, 85 Ga. App. 661, 70 S.E.2d 29 (1952).

Usual rule is that in court of law costs are to be paid by losing party, not out of the estate or fund in controversy. Irwin v. Peek, 171 Ga. 375, 155 S.E. 515 (1930).

Application against losing party.

- Principle of this section that the losing party shall be taxed for costs has been applied in the following specific instances: landlord in distress warrant, Reynolds v. Howard, 113 Ga. 349, 38 S.E. 849 (1901), and action on surety bond when no recovery was had. Avera Loan & Inv. Co. v. National Sur. Co., 32 Ga. App. 319, 123 S.E. 45 (1924).

Parties liable.

- It follows that a person holding a fi. fa. as collateral cannot be taxed for costs. Lewis v. Beck & Gregg Hdw. Co., 137 Ga. 515, 73 S.E. 739 (1912).

As a general rule, costs are not taxable against a person not a party to the record. Eskind v. Harvey, 20 Ga. App. 412, 93 S.E. 39 (1917).

When verdict was vacated as to both defendants, costs should not be taxed against a party between whom and the plaintiff there was really no issue. Stubbs v. Mendel, 148 Ga. 802, 98 S.E. 476 (1919).

Next of kin are not generally liable for costs in calling on executor to prove will in solemn form, if the proceeding is not vexatious. Irwin v. Peek, 171 Ga. 375, 155 S.E. 515 (1930).

Next of kin have right to put executors on proof of will and this has been held a sufficient reason for not giving costs against them in such an action. Irwin v. Peek, 171 Ga. 375, 155 S.E. 515 (1930).

Usual rule ought to apply as to additional cost for resisting probate.

- In an action by the next of kin calling on an executor to prove a will in solemn form, to the extent of the costs that would necessarily have accrued on the executor's application to probate the will, the estate ought to bear the burden; but as to any cost that resulted from resisting the probate, the usual rule ought to apply and the losing party ought to bear the cost. Irwin v. Peek, 171 Ga. 375, 155 S.E. 515 (1930).

Usual rule applies when will is not admitted.

- Usual rule as to payment by the losing party, and not out of the estate in controversy applies to probate of a will when the will is not admitted. Williams v. Tolbert, 66 Ga. 127 (1880); Francis v. Holbrook, 68 Ga. 829 (1882); Baker v. Bancroft, 79 Ga. 672, 5 S.E. 46 (1887); Young v. Freeman, 153 Ga. 827, 113 S.E. 204 (1922).

Accounting for costs is to be settled when final judgment determines which party is cast. Ward v. Barnes, 95 Ga. 103, 22 S.E. 133 (1894); Johns v. Lewis Drug Co., 120 Ga. 640, 48 S.E. 127 (1904).

Verdict is necessary before costs will be taxed on issue of fact. McWilliams v. Boswell, 145 Ga. 192, 88 S.E. 821 (1916).

When there is demurrer (now motion to dismiss) to affidavit of illegality against an execution and levy, and the demurrer (now motion to dismiss) is sustained, nothing is settled as to costs. Sims v. Hatcher, 77 Ga. 389, 3 S.E. 92 (1886).

Judgment may be diminished but should include all costs.

- Although the defendant may sustain a plea of partial failure of consideration and cause the recovery to be diminished to a sum less than that originally claimed by the plaintiff, the judgment should include costs against the plaintiff, unless the plaintiff has made a valid continuing tender equal in amount to the sum found by the jury, and has duly filed a plea of tender. Livingston Bros. v. Salter, 6 Ga. App. 377, 65 S.E. 60 (1909).

When motion for new trial is dismissed, a plaintiff moving for new trial is alone liable for costs. Greer v. Southwestern R.R., 58 Ga. 266 (1877).

When ownership of property is litigated and the property is divided equally, the costs should be so divided between the claimant and the defendant. Postell v. Chapman, 80 Ga. 679, 7 S.E. 119 (1888). But see Vaughn v. Howard, 75 Ga. 285 (1885), where the division was not equal.

Purpose of appeal bond, on an appeal from the court of ordinary (now probate court), is to protect the appellee, should the appellee prevail, from the payment of the costs should the appellant fail to pay the costs. If litigation ensues after the judgment of the ordinary (now probate judge) approving the return of appraisers, the costs accruing from that litigation are to be taxed as in ordinary cases between adversary parties. In all civil cases, except as provided in the Code, the costs are assessed against the losing party. Marks v. Henry, 85 Ga. App. 275, 68 S.E.2d 923 (1952).

If appeal from justice court to superior court results in favor of the appellant, the legal costs paid by the appellant on entering the appeal are a part of the costs for which judgment is to be rendered. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

When amount awarded by superior court is less than that awarded by ordinary (now probate judge), on an appeal by the defendant for excessiveness, the costs of the entire proceedings should be taxed against the applicant. Chambliss v. Bolton, 146 Ga. 734, 92 S.E. 204 (1917).

Consent to correction of error in superior court will not authorize taxing of costs upon applicant for certiorari. Western & A.R.R. v. Greeson, 68 Ga. 180 (1881).

Costs will not be decided in Supreme Court except upon review. Atlanta & W.P.R.R. v. Golightly, 148 Ga. 582, 97 S.E. 516 (1918).

Cost paid despite eventual success.

- Even though the party cast in the Supreme Court eventually succeeds in the superior court, the party cannot recover such costs. McGuire v. Johnson, 25 Ga. 604 (1858); Walker v. Hillyer, 130 Ga. 466, 61 S.E. 8 (1908).

Ordinarily, reversal in the Supreme Court carries a judgment for costs in favor of the plaintiff in error. Pope v. Jones, 79 Ga. 487, 4 S.E. 860 (1887).

When conditional affirmance of judgment of Supreme Court is complied with, the plaintiff in error is not entitled to costs incurred in the superior court. Smith v. Turnley, 46 Ga. 454 (1872). See also Summerville Macadamized Rd. Co. v. Baker, 70 Ga. 513 (1883).

Motion to retax costs.

- If a defendant has complied with the demands of a plaintiff after an action has been instituted against the defendant, the costs of court should be assessed against the defendant; however, such question cannot be raised by a motion for new trial but should be raised by a timely motion to retax the costs since the judgment of costs is not part of the verdict but a duty of the court. Markan Realty Co. v. Klarman, 99 Ga. App. 703, 109 S.E.2d 907 (1959).

When a defendant pays a plaintiff the amount claimed to be due in a petition after the action is filed against the defendant, or performs in accordance with the prayers of a petition for a writ of mandamus, the court costs, as a matter of law, in the absence of an agreement between the parties, should be assessed against the defendant; but when no effort has been made by the plaintiff, in a case where the trial court orders such costs to be paid by the plaintiff, to have the costs retaxed, no question for decision is presented to the appellate courts and a motion for new trial would not raise such question. Markan Realty Co. v. Klarman, 99 Ga. App. 703, 109 S.E.2d 907 (1959).

Equity cases.

- Judge in equity, as under the old English practice, may do in an equity case what could not be done by the presiding judge in a case at law, thus relaxing the rule found in this section; upon this principle of equity power, the right to fix counsel fees, no less than statutory costs, in an equity case resides in the judge and not in the jury. Georgia Veneer & Package Co. v. Florida Nat'l Bank, 198 Ga. 591, 32 S.E.2d 465 (1944).

Judge to determine upon whom costs fall in equity.

- While in all civil actions at law, except as otherwise provided, the party who shall discontinue, fail, or be cast in such suit shall be liable for the costs thereof, under the statutes in equity cases it is the province of the judge to determine upon whom the costs shall fall, and the Supreme Court will not interfere unless the judge's discretion has been abused. Walden v. S.M. Whitney Co., 201 Ga. 65, 38 S.E.2d 744 (1946).

Indigent not relieved of liability.

- O.C.G.A. § 9-15-2 does not relieve an indigent inmate from paying costs required under O.C.G.A. § 9-15-1. Newsome v. Graham, 254 Ga. 711, 334 S.E.2d 183 (1985).

Local court rule provision for taxing the costs of arbitration against a party who demands a trial de novo and does not improve that party's position did not constitute a conflict with O.C.G.A. § 9-15-1 since such a party is a loser within the scheme of the arbitration project. Davis v. Gaona, 260 Ga. 450, 396 S.E.2d 218 (1990).

Cited in Bremen Foundry & Mach. Works v. McLendon, 19 Ga. App. 650, 91 S.E. 1049 (1917); Grizzard v. Ford, 167 Ga. 531, 146 S.E. 126 (1928); Hartsfield Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693 (1937); Hicks v. Atlanta Trust Co., 187 Ga. 314, 200 S.E. 301 (1938); Board of Educ. v. Fowler, 192 Ga. 35, 14 S.E.2d 478 (1941); Hyndman v. Hyndman, 208 Ga. 797, 69 S.E.2d 859 (1952); Mendenhall v. Kingloff, 215 Ga. 726, 113 S.E.2d 449 (1960); Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973); Herring v. Ferrell, 137 Ga. App. 156, 223 S.E.2d 213 (1976); Paul v. Paul, 236 Ga. 692, 225 S.E.2d 45 (1976); Brown v. Donahoo, 141 Ga. App. 309, 233 S.E.2d 269 (1977); City of Atlanta v. International Ass'n of Firefighters Local 134, 240 Ga. 24, 239 S.E.2d 353 (1977); King v. Loyd, 170 Ga. App. 638, 317 S.E.2d 879 (1984); Caldwell v. State, 253 Ga. 400, 321 S.E.2d 704 (1984); Weprin v. Peterson, 736 F. Supp. 1131 (N.D. Ga. 1988).

ALR.

- Right to costs where judgment is against plaintiff on his complaint and against defendant on his counterclaim, 75 A.L.R. 1400.

Award of costs to defendant on causes of action where claims of some, but not all, of coplaintiffs were successful, 68 A.L.R.2d 1058.

Liability of state, or its agency or board, for costs in civil action to which it is a party, 72 A.L.R.2d 1379.

Liability insurer's liability for interest and costs on excess of judgment over policy limit, 76 A.L.R.2d 983.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

Allowance of attorney's fees in civil contempt proceedings, 43 A.L.R.3d 793.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as "prevailing party" or "successful party,", 66 A.L.R.3d 1087.

Who is the "successful party" or "prevailing party" for purposes of awarding costs where both parties prevail on affirmative claims, 66 A.L.R.3d 1115.

Continuance of civil case as conditioned upon applicant's payment of costs or expenses incurred by other party, 9 A.L.R.4th 1144.