Benjamin v. Wheeler , 84 Mass. 235 ( 1861 )

Bigelow, C. J.

We think that the costs, which were incurred while the case was pending on the docket of this court, were rightly allowed. They come within the principle, by which costs are allowed to parties in cases of which the court has no jurisdiction. Cary v. Daniels, 5 Met. 236. Jordan v. Dennis, 7 Met. 591. It was necessary for the defendant to appear and attend to the case, while it was pending here. The fact that it was removed to and entered in this court by a mutual mistake of the parties does not affect the right of the prevailing party to recover his full costs. Such mistake did not prevent the defendant from incurring costs in this court, nor did it relieve the plaintiff from paying them in the event that he did not maintain his suit.

Taxation affirmed.