On December 7, 1966, this court reversed certain judgments of the Boone Circuit Court rendered against the appellant on July 18, 1962. See General Grain v. Goodrich, et al. (1966), 140 Ind.App. 100, 9 Ind. Dec. 505, 221 N.E.2d 696. A petition for rehearing was denied by this court on January 7, 1967.
On September 15, 1967, three days after the Supreme Court's order denying rehearing, the appellant filed with this court its statement of costs and motion to tax such costs against appellees.
In pertinent part, appellant's statement of costs reads as follows:
1. For Bill of Exceptions to Mary E. Edwards, Reporter of the Boone Circuit Court, paid by Appellant $ 1,095.00 2. For Transcript of record to the Clerk of the Boone Circuit Court, paid by Appellant 152.40 3. For premium for appeal bond fixed by the Trial Court in the amount of $665,000, paid by Appellant to Foster and Messick 16,190.80 4. For cost of letter of credit paid by Appellant issued by the American Fletcher National Bank & Trust Company, Indianapolis, Indiana, to United States Fidelity & Guaranty Company 3,500.00 5. Invoice received by Appellant from Foster & Messick for premium of appeal bond described in (3) above, which invoice Appellant has not yet paid 14,580.00 __________ Total $35,518.20
There is no dispute as to items numbered 1 and 2. These items, totaling $1,247.40, it is agreed, should be taxed to and paid by the appellees.
Appellees contend that item number 3, the appeal bond premium should be paid by appellant. We cannot agree.
Burns' Ind. Stat. Anno. § 25-1407, reads as follows:
Appellees contend that the emphasized portion of the above statute relates only to fiduciaries, and that appellees are not liable for these appeal bond premiums paid by appellant.
In Jose v. Hunter (1916), 63 Ind.App. 298, 303, 124 N.E. 65, this contention was refuted, when this court said:
This rule was reaffirmed in Pittman-Rice Coal Co., Inc. v. Hansen (1952), 122 Ind.App. 334, 342, 104 N.E.2d 758.
Therefore, item number 3, amounting to $16,190.80, should be taxed to and paid by the appellees.
Item number 4 involves the cost of a letter of credit purchased by appellant and issued by the American Fletcher National Bank and Trust Company, to appellant's surety company.
Burns' Ind. Stat. Anno. § 25-1407, supra, the only authority relied on by appellant in support of its position, is not applicable. This section applies only to premiums paid to duly authorized bonding companies. As the cost of the letter of credit was not paid to such a surety company this expense must be borne by the appellant.
Burns' Ind. Stat. Anno. § 25-1407, supra, also provides that the party is entitled to recover "such reasonable sum as may have been paid. ..." As the expenses in item number 5 are unpaid, we cannot enlarge the coverage of the statute, and these costs cannot be taxed against appellees.
Appellees also contend that appellant's motion and statement of costs were not timely filed. In Howard v. Robinette (1952), 123 Ind.App. 206, 109 N.E.2d 432, this court held that the statement of costs must be filed within a "reasonable time". There is no decision in this state defining what is a "reasonable time" in the premises. Each case must stand on its own facts and circumstances. We believe that the filing of a motion to tax costs, three days after the petition for rehearing was denied by the Supreme Court was within a reasonable time.
The total of $17,439.20 in costs in this appeal should be taxed against appellees. However, this appeal involves 104 separate actions, consolidated for purposes of trial and appeal. Because of this factor, appellant is ordered to allocate such costs among the appellees according to their interests and certify a restatement of costs to the Clerk of this court with proof of service, as required by Supreme Court Rules.
NOTE. — Reported in 233 N.E.2d 187.