
    Marion County v. Spaulding.
    (Decided April 21, 1911.)
    Appeal from Marion Circuit Court.
    Costs — Motion to Correct Taxation of Cost — Filing Copies of Briefs— Taxation of Cost .for One Copy — The copies of a brief intended for distribution among the judges of the Court of Appeals are not such papers as the statute refers to, and' the clerk in taxing the cost should only tax cost for filing the brief, and not for each copy, and where a brief is filed for both the original and *cross> appeal, the service for filing it should he taxed hut once.
    *On a cross appeal a tax of $2.00 is not to be .paid and an attorney’s fee is not to be taxed - i
    HENRY S. McELROY for appellant.
    WM. M. SPALDING and BROWN & NUCKOLS for appellee.
   OPINION OF THE COURT BY

CHIEF JUSTICE HOBSON

ON Motion to Correct Taxation of Cost.

By section 1742 Kentucky Statutes the successful party is allowed an attorney’s fee of $5.00 in common law actions in this court to be taxed as cost. A cross appeal may only he taken by the appellee against the appellant. It is heard with the original appeal. It is not barred by limitation although not sued out within two years after the judgment. It is in other words, a mere incident of the appeal, and not a separate proceeding. (Covington Short Route Co. v. Piel, 9 R. 665, Elizabethtown, etc. R. R. Co. v. Catlettsbnrg Water Co. 110 Ky. 175.) No attorney’s fee should therefore he taxed on the cross appeal. Only one attorney’s fee may he taxed in favor of the successful party on the appeal. For the samé reason there is no tax to be paid on a cross appeal. The tax of $2.00 is to be paid on an appeal. There is no provision of the statute for a tax of $2.00 on a cross appeal. (Kentucky Statutes Section 4238.)

By a rule of this court where printed briefs or petitions for rehearing are filed, nine copies are filed with the clerk; one to remain in the record and the others are for' distribution among tbe judges. The statute which allows the clerk fifteen cents for filing a paper refers to papers which are to remain in the record. The copies of the brief or petition for rehearing which are intended for distribution among the judges, do not remain in the record and are not such papers as the statute refers to. The clerk in taxing the cost should only tax fifteen cents for filing the brief, and not fifteen cents in addition for each copy. When a brief is filed which is the party’s brief both on the original and the cross-appeal, the service of filing it should only be taxed once. It should not be taxed on the original appeal, and then again on the cross appeal as only one service is rendered. The same is true of others like matters, only one charge should be made for one service.

The motion to correct the taxation of cost is sustained to the extent above indicated; in other respects it is overruled.  