Moore v. Mann , 29 Me. 559 ( 1849 )

Shepley, C. J.

orally.

Both parties complain of the judgment of the court below; one that costs are taxed at all, and the other that there is not enough allowed. The question presented is whether this case comes within the provisions of c. 115, $ 55, 56. It cannot rightfully be said that this is an action and § 56 speaks only of actions. There is a provision in c. 121, R. S. calling this proceeding for partition an action, but § 15 provides that in all actions at common law for partition, costs shall be taxed upon like principles as when the proceeding is by petition-. This [case does not fall within the partition act, because the persons”against”whom judgment for costs was rendered were not parties. In order for one to be a party he must present himself on the docket of the Court and be subject to costs on trial, if such there should be. Section 30 of same chapter provides for a recommitment of the report, or that it may be set aside, >§>31 enacts that all parties to the judgment shall be bound, and § 63 makes provision for those not appearing and answering, and shows what is meant by an appearance, that the party must present himself upon the docket or on the record. Here the parties appeared only by a written motion against the acceptance of the commissioners’ return. This proceding did not make them parties to the petition. They never intended to make themselves parties nor can an act of this character constitute them such.

No costs allowed.