Ham v. Ham , 43 Me. 285 ( 1857 )

Cutting, J.

Sec. 11 of the R. S., chap. 121, authorizes any person interested in the premises of which partition is prayed, to appear and defend, and show cause why the petitioner ought not to have partition, as prayed for, in whole or in part.

Sec. 13 provides that “ If it shall appear that the respondent has no estate or interest in the lands, the objections to the partition shall be no further a matter of inquiry, and the petitioner shall recover of the respondent the costs attending the trial."

Now, when are the costs recoverable? When “it shall appear that the respondent has no estate or interest in the lands.” How does it so appear ? By a decision of the issues presented at the trial, and until it shall so appear no interlocutory judgment can be entered. And in the language of Bronson, C. J., “ one must wink veiy hard not to see” that after such an entry there can be no trial, and it is only the costs “ attending the trial” which are taxable.

After judgment for partition the petitioner can no longer have an adversary in court — the judgment has expelled him. But on the notice given by the commissioners, as prescribed by the 23d sec., any person interested may appear before them, and may even follow them into court, and show cause why their report should not be accepted, and to such, even if they should succeed, the statute allows no cost, neither does it allow coats to be taxed against them in case they are unsuccessful. And because such person interested has contested the petitioner’s title, and subjected himself to the payment of legal costs, it by no means follows that thereby he may not subsequently be heard with impunity, the same as though he had not originally defended against the title. Moore v. Mann, 29 Maine R., 559. No costs can be taxed for tlie petitioner against the respondent, which in any way accrued after the interlocutory judgment.