Smith v. Pike , 160 Mass. 24 ( 1893 )

Field, C. J.

The Pub. Sts. c. 155, § 23, provide as follows: “ If the plaintiff fails to enter and prosecute his action, or if, upon a trial, he does not maintain the same, the defendant shall recover judgment for his costs, to be taxed by the trial justice.” See Pub. Sts. c. 154, § 12. If the petitioner, being the defendant in the suit of Pike v. Smith, was not subject to the jurisdiction of the District Court of Northern Berkshire in that suit, he yet could have appeared and submitted himself to that jurisdiction, or if he did not submit himself to the jurisdiction and if the suit had been entered, he could have appeared specially and had the action dismissed on motion, and then would have been entitled to his costs. If the plaintiff bad discontinued the action after entry, the defendant would have been entitled to costs. We think that this is true if the plaintiff discontinues the action before entry. The defendant had been summoned to appear, and we think he should have the right to protect himself by having the proper entry made in the court to which the process is returnable. It is not clear in the case at bar whether the petitioner received notice that the writ would not be entered in season to so inform his attorney before the attorney appeared in court according to the summons, but this is not material. The statute has made no provision for giving such a notice, and we are of opinion that the giving of it cannot deprive the defendant in the suit of his right to costs under the statute.

Judgment for petitioner affirmed.