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262 Ind. 403

316 N.E.2d 828

Marshall v. Reeves

Indiana Supreme Court

Decided October 3, 1974

Indiana Supreme Court · decided 1974-10-03

Key passage — most relied on by later courts

“"If the court on appeal affirms the judgment, damages may be assessed in favor of the appellee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution."”

quoted by 4 later decisions, including Lawson v. Haven Hubbard Homes, Inc., Lesher v. Baltimore Football Club

“"A discretionary award of damages is proper where an appeal is frivolous, or without substance or merit. Further, a penalty may be assessed where an appeal is taken merely to harass or delay the appellee, 'thus presenting an illustration of vexatious litigation, that crowds our courts to the detriment of meritorious action, and which should not go unre-buked.' [Citations omitted.]"”

quoted by 2 later decisions, including Sandock v. Taylor Construction Corp., Donahue v. Lafayette Bank & Trust Co.

Relies on Marks v. Bremmer · Vandalia Railroad v. Walsh

Good law ✅— No negative treatment on recordhow we know

Decided 1974-10-03

How this case has been cited

Cited by 51 later decisions — most recently September 1997 · most notably Orr v. Turco Manufacturing Co. (1987), Royal Business Machines, Inc. v. Lorraine Corp. (1980)

3 federal appellate · 48 state decisions

330197419801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 ON MOTION TO TAX COSTS ON APPEAL

Hunter, J.

¶2 Before this Court is a motion to tax costs on appeal which was filed subsequent to our opinion on the merits in the same case. Appellee seeks to include transfer and attorney fees as “costs” to be borne by appellant. However, neither a transfer fee nor attorney fees are included as costs under AP. 15 (G):

“(1) Who recovers. When the judgment is affirmed in whole, the appellee shall recover costs; and when the judgment is reversed in whole the appellant shall recover costs in the court on appeal and the court below. In all other cases costs shall be awarded as the court may deem right following, as nearly as possible, the general regulation for awarding costs.
“ (2) What included. The fee paid for procuring the transcript, the costs of serving and notice of appeal are a part of the costs of the court on appeal. Each party to the action shall bear the cost of printing his own briefs.”
The instant appeal involved child custody and no monetary damages were at issue at any stage of the proceedings. This is not a proper case for assessing damages pursuant to AP. 15 (F) :
“If the court on appeal affirms the judgment, damages may be assessed in favor of the appellee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution.”

¶3 A discretionary award of damages is proper where an appeal is frivolous, or without substance or merit. Marks v. Bremmer (1917), 186 Ind. 434, 116 N.E. 738. Further, a penalty may be assessed where an appeal is taken merely to harass or delay the appellee, “thus presenting an illustration of vexatious litigation, that crowds our courts to the detriment of meritorious actions, and which should not go unrebuked.” Vandalia R. Co. v. Walsh (1909), 44 Ind. App. 297, 299, 89 N.E. 320.

¶4 No discretionary award of damages is proper here. The instant appeal was taken in good faith upon legal and equitable *405 grounds which a majority of the Court of Appeals and one member of this Court found to be persuasive. .

¶5 For the foregoing reasons, the motion to tax costs on appeal is hereby denied.

¶6 Motion denied.

Arterburn, C.J., DeBruler, Givan and Prentice, JJ., concur.

¶7 NOTE.—Reported at 316 N.E.2d 828.

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