Barnes v. City of Springfield , 273 Mass. 283 ( 1930 )

Rugg, C.J.

The cause of action here involved is a petition for the assessment of damages for the taking of land by the defendant under the authority of St. 1906, c. 317. After decision on exceptions taken at the trial, 268 Mass. 497, the respondent, as shown by the docket entries attached to the record in the case at bar, filed a request to be heard on the taxation of costs, and later, a motion that the case be set down for hearing upon the allowance and taxation of costs. This was proper practice. Subsequently there was entered by the trial judge an “ Order as to Costs under Authority of Acts 1906, Ch. 317, § 7.” The items specified in that order were entry' fee, attorney’s fee, five term fees, and printing briefs; the total was $79.25. See G. L. c. 261, §§ 23, 25, as amended by St. 1924, c. 108, §§ 1, 2. From this order the petitioners appealed.

The first question is whether the order from which the appeal has been taken was decisive of the case founded upon matter of law apparent on the record. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2. It is manifest that the order as to costs was not such an order. The order as to costs was not decisive of the case. It related only to a subsidiary matter. The ascertainment of the amount of costs, if in dispute, commonly depends upon evidence and not upon matter of law apparent on the record.

The statute governing costs in the case at bar provides that “ Whether or not costs shall be allowed to the prevailing party, and in what amount, shall be in the discretion of said court.” St. 1906, c. 317, § 7. See G. L. c. 261, § 13. The order of the trial judge as to costs was within his jurisdiction by the express words of the statute. See G. L. c. 261, § 20. There is nothing on this record in violation of § 25A, added to G. L. c. 261, by St. 1924, c. 108, § 6. The judge made a special order touching costs.

Where the allowance of costs is placed by law in the discretion of the judge, his decision is not subject to revision even if properly brought to this court. Bond v. Fay, 1 Allen, 212. Breed v. Lynn, 126 Mass. 290. There are numerous cases where the law has made no provision for costs. Gifford v. Dartmouth, 129 Mass. 135. Hamlin v. New Bedford, 143 Mass. 192. Providence & Worcester Railroad, petitioner, 172 Mass. 117. Main v. County of Plymouth, 223 Mass. 66.

Nothing whatever in the present record indicates abuse of discretion. Whether disbursements made by a party for plans ought to be allowed as costs, usually rests in sound judicial discretion. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 262-264.

The petitioners have argued numerous questions wholly outside the record and not before us for decision. Even if some of these may have appeared in their exceptions, we do not know what they are and they are not here. Those exceptions, according to the docket entries, have been dismissed. They cannot be considered. See Commonwealth v. Kossowan, 265 Mass. 436, 437.

Appeal dismissed.