Opinion
No. 25940.
October 21, 1968.
R. Edgar Campbell, Perry, Walters, Langstaff Lippitt, Albany, Ga., for appellant.
Jesse G. Bowles, Cuthbert, Ga., Tracy Moulton, Jr., Blakely, Ga., for appellee.
Before JOHN R. BROWN, Chief Judge, TUTTLE, Circuit Judge, and FISHER, District Judge.
It appeared that upon the former appearance of this case in this court, the judgment of the trial court was affirmed in part and reversed in part, recovery being permitted on two of three policies and being reversed as to the third policy involved in the litigation. Upon remand, the clerk of this court assessed total costs to the appellee, doubtless on the theory that the appellant was required to come to this court to get relief from an incorrect judgment below. However, since the relief obtained on the appeal was only as to one-third of the judgment of the district court, this court would normally have allowed credit to the appellant for the one-third of the costs involved rather than either all of the costs, as provided in the mandate by the clerk, or for one-half of the costs as provided in the subsequent order entered in the district court.
Appellant now appeals from an entry of a judgment in the district court upon remand allowing appellee to recover one-half the costs.
We conclude that the order of the district court departed from the mandate of this court, and it is, therefore, set aside. However, since this court has the power to correct its mandate, we now direct that the costs of the original appeal, including the cost for transcribing the evidence in the court below, be charged two-thirds to appellant Globe and one-third to Still. In view of the fact that Globe gains nothing by this appeal, the costs of this appeal are taxed against the appellant, Globe.