Abbott v. County of Penobscot , 52 Me. 584 ( 1864 )

The opinion of the Court was drawn by

Kent, J.

The only questions presented in this case are whether the petitioner is entitled to costs, and if so, how the same is to be taxed. The petitioner’s case is within the provisions of c. 18, § 13, which provides that, in a case like this, "the prevailing party shall recover costs, to be taxed and allowed by the Court to which the verdict or re-poi’t is returned, to be certified with it to the Commissioners.” He is the prevailing party — having obtained'a verdict, for damages — when the Commissioners had allowed him none. The language of the statute is general and covers all legal costs, and is not restricted to costs in this Court. The Legislature intended to mulct the petitioner who fails in his application or appeal, by requiring a judgment by the County Commissioners against him, "for all expenses incurred on account of it.” § 3.

In other sections of the same statute in reference to the same subject matter, the word " expenses” is altered to the word "costs.” §§ 6, 9. That costs for the petitioners before County Commissioners may be allowed seems to be admitted in Woodman v. Somerset, 24 Maine, 152; Morse, Pet., 18 Pick., 443. If he may be compelled to pay costs or expenses, he is fairly entitled to costs where he is the prevailing party ; and this the statute gives to him.

We see no reason why costs for the prevailing party should not be allowed in the hearing befoi’e the juxy; in the same manner and to same extent as if the trial had been in this Court; i. e., for travel and actual attendance, fees for witnesses, and all copies and other matters which would be legally taxable if the case had been heard ixx Court.

The petitioner is also entitled to costs in the Court of County Commissioners for entry, petition, travel and attendance ; but for no more than one term before the warrant for a jury is issued, unless some satisfactory reason is given for the delay in issuing it beyond the term when the petition is entered. None such is stated in this case. No costs in that Court should be taxed, after the issuing of the warrant for a jury, except travel and one day’s attendance at the term when the verdict is certified from this Court. After' the warrant for a jury is issued, there can probably be no action in the Commissioners’ Court on the matter of the petition until the certificate is sent from this Court; and, of course, there is no necessity for any attendance by the party in that Court, until that time.

In this Court, the petitioner is entitled to the usual fees for entry and travel and attendance. But, as this is not a common case of the entry of an action between parties, it does not follow that full costs are to be taxed for the whole time the matter may remain on the docket of the Court. It is the duty of the petitioner, who has obtained a verdict in his favor, to enter his petition for its acceptance, &c., according to the provisions of the statute, and to move its acceptance during the term at which it is entered. If this is resisted by the county attorney, and the questions raised cannot be, or are not determined at that term, costs may be allowed in such action, in the discretion of the Court, beyond the first term. 4 .

In this case, the facts stated show that the petitioner did not move for the acceptance of the verdict until the second term, and that, when offered, the county attorney at once consented to its acceptance. No objection seems to have been made at any time to the acceptance. It was accepted by the Court, and no reasons are assigned why it has remained in this Court, without a certificate being made to the Court of County Commissioners’. Under these circumstances, we think the petitioner is entitled- only to costs for travel and attendance until accepted at the term when the

report or verdict was accepted. In addition he may charge for entry in this Court, and the usual charge for continuances. After the confirmation of the verdict, the case was like one continued for judgment, at the request of the prevailing party, and no costs, except for continuance, is taxable for the subsequent terms. The petitioners may tax for the two terms in the law court. The county should not be compelled to pay cost's, arising from mere delay of the other party.

The costs are to be taxed and allowed in accordance with this opinion, and certified to the County Commissioners with the verdict and its acceptance.

Appleton, C. J., Cutting, Davis and Walton, JJ., concurred.