MCWILLIAMS DREDGING CO. ET AL.
v.
DEPARTMENT OF HIGHWAYS OF LOUISIANA
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An order taxing costs is appealable if the refusal to tax is based on a lack of power, not discretion. The lower court's decision is affirmed as it correctly followed precedent regarding taxable costs.
Appellants appealed an order taxing costs. Appellee argued the appeal should be dismissed as it only involved costs, which are generally not appealabl…
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HUTCHESON, Chief Judge.
Appealing from an order taxing costs, appellants are here insisting that it should be reversed.
Invoking the general rule that an appeal does not lie from a decree solely for costs,1 appellee insists that the appeal should be dismissed as one merely involving discretion, and, in the alternative, that if appealable, the order should be affirmed.
Since the refusal below to tax most of the items was based not upon the exercise of discretion but upon want of power to do so, it is clear that the order was appealable.2 We cannot, therefore, agree with appellee that the appeal should be dismissed.
We do agree with it, though, that the order should be affirmed. This is so because the refusal of most, indeed of nearly all, of the items, was based upon the view that there was no provision in the Statute, the Rules of Civil Procedure, 28 U.S.C.A., or in the practice of the court authorizing their allowance, while the allowance of the other small items was in the discretion of the court.
In Parkerson v. Borst, 5 Cir., 256 F. 827, at page 829, this court held that the allowance or disallowance of items of cost was properly determined by whether there was a statute, rule, order or practice of the court allowing them as taxable costs in the case.
The action of the court below in disallowing items as costs was in precise accordance with that decision.
As to the amounts he allowed, it is settled by the authorities cited supra, that where the taxation or non-taxation of costs involves not a question of the power to allow 'but of the amount to be allowed, an appellate court will not review the order. The judgment is
Affirmed.
. Newton v. Consolidated Gas Co., 265 U.S. 78, 44 S.Ct. 481, 68 L.Ed. 909; Walker v. Lee, 9 Cir., 71 F. 2d 622.
. Newton v. Consolidated Gas Co., note 1, supra; Walker v. Lee, note 1, supra; Williams v. Sawyer Bros., 2 Cir., 51 F. 2d 1004, 81 A.L.R. 1527; Barnes Co. v. International Harvester Co., 7 Cir., 145 F. 2d 915.
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Green v. Am. Tobacco Co., 304 F.2d 70 (5th Cir. 1962)
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United States v. Marrian Kolesar and Andrew Kolesar, 313 F.2d 835 (5th Cir. 1963)
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Indep. Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656 (9th Cir. 1963)
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Newton v. Consol. Gas Co. of N.Y., 265 U.S. 78 (U.S. 1924)
- Williams v. Sawyer Bros, Inc., 51 F.2d 1004 (2d Cir. 1931)
- Walker v. LEE, 71 F.2d 622 (9th Cir. 1934)
- W. F. & John Barnes Co. v. Int'l Harvester Co., 145 F.2d 915 (7th Cir. 1944)