Plaintiffs, Vera E. Gary et al., appeal an award of attorney's fees under 42 U.S.C. § 19881 to defendants J. Fred Spires and several merchants whom he represented. The allowance followed plaintiffs' unsuccessful suit against Spires et al. in the Federal District Court for South Carolina for the abuse of process, allegedly amounting to an abrogation of their civil rights, 42 U.S.C. § 1983.2 Two months after the dismissal of plaintiffs' action and the expiration of the appeal period, the Court passed the fee order. We reverse.

The complaint had charged that Spires, as the administrator of a check clearing house in South Carolina, committed the civil rights violation by his method of debt collections. However, his plea of judicial immunity, by reason of his official position, was upheld and a judgment dismissing both Spires and the merchants was issued March 14, 1979. It included a direction that defendants recover the "costs of the action." Failing a timely appeal, the judgment became final on April 13, 1979. Not until two months later, in June, did Spires and the merchants move for § 1988 attorney's fees.

In our view deferment of a demand for fees until after the expiration of the appeal period was unjustified. A decision not to appeal may rest not only on the merits of the appellant's claim or defense, but also upon consideration of the expense of the review. Indeed, as is common knowledge among laymen and lawyers, a right or wrong must often be waived or suffered lest the contingent financial incurrence make it ill-advised. Here the plaintiffs were severely prejudiced-they were barred the opportunity to attempt this economic balance. Defendants did not broach to the plaintiffs word of their intended exaction of fees until it was too late for them to appeal. The demand should be rejected as inequitable. This power is vested in the Court by § 1988 in its proviso that "the court in its discretion may allow" attorney's fees. (Accent added.) In the instant circumstances the positive exercise of this authorization was prejudicial error.

Further, it will be noted, § 1988 terms the fees "as a part of the costs." (Accent added.) Rule 54(d), Federal Rules of Civil Procedure,3 directs that they be taxed by the Clerk and it conditions review thereof by the Court upon "motion served within 5 days after the Clerk's taxation." Provision was made in the judgment for the defendants to recover the "costs of the action," as prescribed by 28 U.S.C. §§ 1920,4 1923(a). Although there was no mention in the judgment of § 1988 fees, the defendants moved for no review by the Court of the costs as taxed in the judgment. Hence, for the trial court to allow them, we hold, was error.

As we deem the errors at trial require vacation of the order for attorney's fees under § 1988, the judgment therefor will be set aside.

Judgment Vacated.