¶1Terry, C. J., and Field, J., concurring.
¶2The remittitur in this case followed the decision of the Court, and is in strict conformity therewith. If any one "or more of the parties had desired a modification of the judgment, as to costs, the proper application should have been made within the ten days allowed for filing a petition for a rehearing.
¶3It is objected on the part of Eaton, who makes this motion, that no bill of costs was filed in .this Court, as required by section 510 of the Code. We think that section does not apply to costs upon appeal.
¶4The costs upon appeal are properly the costs in this Court, and the costs of making up the appeal in the Court below, including the cost of making out the transcript.
¶5If we were to require a bill of costs to be filed in this Court, the result would be exceedingly oppressive upon members of the bar. The Code requires the bill to be filed within two days after the decision ; and as decisions are made from time to time in vacation, attorneys residing out of this city could not file their memorandums of costs within the time limited.
¶6Where a case is remanded for further proceedings, and costs awarded in this Court in general terms, we mean only to include the costs upon appeal, leaving the costs of the former trial to abide the event of the suit.
¶7Motion denied.