
    Alma SMITH, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 1870.
    Court of Appeal of Louisiana. Third Circuit.
    Dec. 1, 1966.
    Daniel J. McGee, Mamou, for plaintiff-appellant.
    Frugé & Foret, by J. Burton Foret, Ville, Platte, for defendant-appellee.
    Before TATE, SAVOY and PIOOD, JJ.
   HOOD, Judge.

This is an action for damages for personal injuries sustained by plaintiff in an automobile accident. It was before us originally on an appeal from a judgment on the merits. See Smith v. Southern Farm Bureau Casualty Insurance Company, 164 So.2d 647. It is before us at this time on appeal by plaintiff from a judgment dismissing the latter’s demand that defendant, Southern Farm Bureau Casualty Insurance Company, he ordered summarily to pay “all of the court costs” incurred in this proceeding.

Judgment on the merits was rendered by the trial court on January 2, 1964, in favor of plaintiff and against defendant, Southern Farm, for the principal sum of $3500.00, with legal interest thereon from date of judicial demand until paid, “and for all costs of this suit.” The third party demand of Southern Farm against Dovic Fontenot for contribution was rejected. On appeal, we affirmed that judgment. (164 So.2d 647).

A writ of certiorari was granted by the Louisiana Supreme Court, and after a hearing that court amended the original judgment to allow the demand for contribution asserted by Southern Farm Bureau Casualty Company against Dovic Fontenot, the third party defendant in the suit, and in that judgment the Supreme Court ordered “costs to be assessed equally against said parties.” See opinion at 247 La. 695, 174 So.2d 122.

After the above mentioned judgment had been rendered by the Supreme Court, Southern Farm paid to Mrs. Alma Smith the sum of $3845.00 in cash, and it obtained a receipt for that payment from her. The receipt is dated April 22, 1965, it was executed by Mrs. Smith before a notary and two witnesses, and it recites that the sum paid is “in full payment” of the judgments rendered in this matter by the trial court, by the Court of Appeal, and by the Supreme Court. The receipt further provides that Mrs. Smith “does hereby grant a full acquittance to Southern Farm Bureau Casualty Insurance Company for any amount or amounts owed to her by the said SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.”

Several weeks after that payment was made Mrs. Smith caused a rule to issue directing Southern Farm to show cause “why it should not be ordered to pay all of the court costs incurred in the above entitled proceeding, with only a right to reimbursement of part of the costs from its third party defendant, Dovic Fontenot.” After trial of that rule, the trial judge concluded that Southern Farm was no longer liable for any additional costs in view of the acquittance which had been given by plaintiff, and judgment thus was rendered dismissing the rule. The present appeal was taken by plaintiff from that judgment.

Shortly before this rule was dismissed, the trial judge rendered judgment in favor of Southern Farm and against the third defendant, Dovic Fontenot, for the sum of $1922.50, with legal interest thereon from date of judicial demand, and “for one-half of any and all court costs” which Southern Farm may have paid in this suit.

The record does not show what costs have been paid by Southern Farm. For the purpose of disposing of the issues presented here, however, we will assume that plaintiff is correct in her assertion that Southern Farm has paid only one-half of the costs incurred in this suit. Plaintiff argues that she is liable to the Clerk of Court for the unpaid portion of such costs, and that she thus is entitled to judgment compelling Southern Farm to pay all of such costs, subject to its right to reimbursement of a part of them from the third party defendant. Southern Farm contends, among other defenses, that plaintiff is barred by the release and acquittance which she executed from requiring the defendant to pay any additional amounts as court costs incurred in this proceeding.

We agree with the conclusion reached by the trial court that the release and acquittance which plaintiff granted to Southern Farm on April 22, 1965, completely relieves the latter from any further liability to plaintiff under the judgments which have been rendered in this suit, and that it includes the release of liability to plaintiff for any additional costs.

The plaintiff in a civil action is primarily bound for all costs until the defendant is cast in judgment. Kilcrease v. Ouachita Coca Cola Bottling Company, 197 So. 165 (La.App.2d Cir. 1939); Allen v. Shreveport Mutual Building Association, 183 La. 521, 164 So. 328. Unless otherwise provided by law, the court may render judgment for costs or any part thereof against any party as it may consider equitable. LSA-C.C.P. art. 1920.

The judgment which was rendered in this case finally fixed the extent of Southern Farm’s liability to plaintiff for damages, interest and costs. The award of costs constitutes a part of the total award which was made to plaintiff, and it is as exigible as any other portion of the judgment. The release and acquittance which was granted by plaintiff to that judgment debtor, however, fully and completely relieves Southern Farm from any further liability to plaintiff under that judgment, including its liability to her for costs as well as for principal and interest. Since plaintiff has formally released Southern Farm from any further liability to her under that judgment, she clearly has no right or authority to compel Southern Farm to pay any additional amounts under that judgment.

The Clerk of Court has made no appearance in this proceeding, so we are not confronted with the question of whether he can recover unpaid costs from Southern Farm. We express no opinion, therefore, as to whether the Clerk has the right to proceed against that defendant for costs under the circumstances presented here.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.

TATE, Judge

(concurring).

The majority opinion reaches the correct result. However, it seems to me that a simpler ground is a preferable basis for the decision.

The plaintiff Alma Smith had brought suit in forma pauperis. She was therefore not required to pay costs as they accrued or to furnish security for them. LSA-C.C.P. Articles 5181-5188. The final judgment of the Supreme Court, affirming all lower court rulings in this respect, held her free from any liability for court costs. .

The simple basis for the decision, it seems to me, is forcefully stated in Southern Farm’s brief as follows:

“Theoretically and practically, Alma Smith has no interest in the payment of these costs. If any person does have such an interest, it is the Clerk of Court of the Thirteenth Judicial District Court, and his remedy is to record a judgment for the unpaid costs against Dovic Fontenot, which he has already done.

“Southern Farm has paid its share of these costs, and there has been no demand made by the Clerk of Court upon it for the other half of the costs. We submit that the matter of the unpaid costs is between the Clerk of Court and Dovic Fontenot, and neither Alma Smith nor Southern Farm Bureau Casualty Insurance Company have any further liability for costs * * *. [S]he is not prejudiced in any way by the failure of the said Southern Farm Bureau Casualty Insurance Company to pay the entire amount of the costs. If some other person, to-wit, the Clerk of Court is prejudiced, then he not Alma Smith should be the one to proceed against Southern Farm.”

Southern Farm’s draft and release were for the full principal sum due Alma Smith plus legal interest. The amount did not include costs, nor did the release refer to same, and in fact Southern Farm paid one-half of same by separate check paid to the Clerk.

If Southern Farm were contending that the release executed by Alma Smith was intended or could be construed to relieve Southern Farm from liability for court costs otherwise due from it, I strongly doubt that the courts would construe it as having done so. There 'was no dispute as to Southern Farm’s liability for court costs and Alma Smith’s freedom from such liability. An accord and satisfaction is not found to have resulted unless the instrument arises in connection with a dispute between the creditor and the debtor as to the amount due; and there was none here. See Hebert v. D. Frugé Contractor, Inc., La.App. 3 Cir., 192 So.2d 574, rendered this date.

Aside from questions of error and fraud, it seems impossible to me that an instrument executed in connection with the satisfaction of the principal amount and interest due upon a judgment, computed to the penny, would ever be construed as also releasing the judgment debtor from additional sums for which indisputably liable by final judgment having the effect of res judicata; at .least where, as here, there was never any discussion of such intention disclosed to the judgment creditor prior to his execution of a pro forma receipt.

But these questions are actually not before us. In my opinion, therefore, the majority opinion should have contended itself with resting upon the simple basis that the plaintiff Alma Smith, who has been held free of liability for court costs by final judgment, has absolutely no interest in the question of by whom or when the court costs will be paid.

As the majority opinion notes, it is sometimes said that a plaintiff is primarily bound for court costs until the defendant is cast in judgment. These pronouncements are based upon statutory provisions or their predecessor enactments that the plaintiff may be required to pay advance court costs and incurred costs as they accrue and also to furnish security for their payment. See LSA-R.S. 13:842, 843, 4522. These statutes do not of course apply to a pauper plaintiff, who is specifically relieved of this primary responsibility by the in forma pauperis statute. LSA-C.C.P. Arts. 5181-5188 especially 5181, 5185, 5186.

If the suit is compromised or dismissed prior to judgment, the pauper plaintiff may .become liable for court costs LSA-C.C.P. Art. 5187, as also if he is unsuccessful in the litigation and cast with the costs, LSA-C.C.P. Art. 5188. But if the pauper plaintiff does not compromise, dismiss, or lose the suit, then the sole statutory enactment regulating his liability is LSA-C.C.P. Art. 5186.

This code article provides: “An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs by the public officers to whom these costs would be payable. If judgment is rendered in favor of the indigent party, the party against whom this judgment is rendered shall he condemned to pay all costs due these officersf who have a privilege on the judgment superior to the rights of the indigent party or his attorney." (Italics mine.)

My chief questioning of the majority opinion is that, indirectly and obliquely and probably unintentionally, it clouds the rather clear meaning and application of these unambiguous statutory provisions. Where the plaintiff’s liability for court costs, or Southern Farm’s for that matter, is not actually at issue, it seems to me it would be preferable to rest the basis of our decision upon the simpler basis that Alma Smith has no interest in the payment of court costs since by final judgment she has been held free of liability for them. It is really unnecessary to add also that she could not be liable for court costs on any other basis either, since she executed no bond and since there is no statutory basis for the assessment of court costs against a successful pauper plaintiff held free of such liability by a final court judgment. This concurring opinion does so only in order to clarify dicta in the majority opinion which the writer feels may be misleading or incorrect.

With the qualifications noted, I respectfully concur in my distinguished brethren’s opinion.  