Shaheen v. Hershfield , 247 Mass. 543 ( 1924 )

Rugg, C.J.

This is an action on a judgment for costs amounting to $6.51 rendered in favor of the plaintiff against the defendant by the district court of Lawrence on January 28,1922. The writ in the case at bar was dated February 7, 1922. Judgment in the present action was rendered in favor of the plaintiff for $6.51, and costs taxed at $8.50 on May 19, 1922. That judgment appears to have been vacated. Costs subsequently were eliminated by order of the district court under G. L. c. 218, § 25. The case went to judgment finally in the district court on February 2, 1923, for $6.51 without costs. From that judgment the plaintiff appealed to the Superior Court. At the trial in the Superior Court the judge ruled (1) that G. L. c. 218, § 25, related to district courts solely and conferred no power on the Superior Court, and (2) that the elimination of costs by the district court was a matter of discretion and not subject to revision or appeal. He allowed the motion of the defendant to eliminate costs and found for the plaintiff in the sum of $6.91. It was agreed at the trial that the plaintiff recovered the judgment upon which this action is brought and that it has never been satisfied in whole or in part. The plaintiff’s exceptions to the second ruling above stated and to the allowance of the motion to eliminate costs bring the case here.

There was error in the allowance in the Superior Court of the defendant’s motion to eliminate costs and in the ruling which we interpret to mean that the elimination of costs by the district court was binding upon the parties to the cause in the Superior Court.

It is plain that the plaintiff was aggrieved by the amount of the judgment rendered in the district court in his favor against the defendant. He had recovered a judgment which under G. L. c. 235, § 8, bore interest from the day of its rendition, namely, from January 28, 1922. He was entitled to recover interest on the amount of his judgment from that date to the date of suing out his writ in the case at bar, and also interest from the latter date on a new principal, being the amount of his judgment plus that first interest, to the date of the judgment from which he took appeal. But that latter judgment included no interest whatever. It was for the same amount as the judgment on which this action is founded. The plaintiff in this action did not go into the district court under the small claims procedure, as he might have done. G. L. c. 218, §§ 21-25. Instead he sued out a writ. He had a right to do that. Under § 25 the district court was within its jurisdiction in eliminating the costs of the plaintiff, because the plaintiff might have begun under the small claims procedure. The power of eliminating costs in such case is expressly conferred by § 25. The plaintiff, however, had done nothing to estop himself from taking advantage of whatever remedy the law afforded for the correction of errors committed by the district court respecting his case. The only remedy thus afforded him at that time was by taking an appeal to the Superior Court as provided in G. L. c. 231, § 97, as amended by St. 1922, c. 532, § 12. The small claims procedure statutes still leave open the right of appeal from an adverse judgment rendered on a writ brought on or before September 30, 1922. Section HOB added to G. L. c. 231 by St. 1922, c. 532, § 8,

The plaintiff had a right of appeal from the judgment of the district court because that judgment, although in his favor, was for a less amount than was claimed and than was his due. Kingsley v. Delano, 172 Mass. 37. The appeal vacated the judgment rendered in the district court. The object and purpose of such an appeal under our statutes is to enable the parties to have their rights determined without regard to any decision of the court of first instance, because it shall be tried and determined in the Superior Court “ as if originally commenced there.” St. 1922, c. 532, § 12. The whole case in all its aspects was pending in the Superior Court under the appeal. Cronin v. Barry, 200 Mass. 563. Hall v. Hall, 200 Mass. 194, 196. Jaha v. Belleg, 13 Allen, 78, 80. This statutory power is quite inconsistent with the view that the elimination of costs ordered in the district court shall follow the case and the parties into the Superior Court! Apart from this, the words of G. L. c. 218, § 25, hardly would be susceptible of that construction.

The plaintiff is entitled to his costs on the judgment rendered in the Superior Court. The general rule is that the prevailing party in civil actions “ shall recover his costs, except as otherwise provided.” G. L. c. 261, § 1. It is provided by G. L. c. 261, § 3, that if “ in a civil action before a district court, the plaintiff appeals from a judgment in his favor . . . and does not recover in. the Superior Court a greater amount for debt or damages than he recovered by the first judgment, he shall recover no costs arising after the appeal.” It is manifest that the plaintiff recovered by the finding in the Superior Court a sum for debt greater than the judgment in the district court and greater also than that judgment plus interest from the date of its rendition. See Crandall v. Colley, 178 Mass. 339. Whether it was for an amount as large as the plaintiff was entitled to recover is not raised on this record. The procedure here followed is inapplicable to actions brought in district courts subsequent to September 30, 1922. Section 110B added to G. L. c. 231 by St. 1922, c. 532, § 8.

Exceptions sustained.