Stilson v. Leeman , 1883 Me. LEXIS 148 ( 1883 )

Virgin, J.

In actions at law, costs and the recovery thereof, are regulated by express statutory provisions — the prevailing partjr being entitled thereto, when not otherwise specially provided, although he does not prevail to the full extent of liis claim. E. S., c. 82, § 104, and cases in margin.

There is no statute regulating the recovery .of costs in suits in equity. The whole subject rests by general practice in the sound discretion of the court. The court is authorized, at its sound discretion, to award costs to either or neither party, as equity shall require on consideration of all the facts and circumstances of the case, and the condition and conduct of the parties. The very facts and circumstances which entitle a party to prevail, generally entitle him to costs also. But this rule is not universal; for a plaintiff may rightfully be entitled to, and obtain a decree affording him the relief sought, and yet not be entitled to costs; for the reason that the defendant was nowise in the wrong.

A prevailing party so much more frequently recovers costs than otherwise, that it has many times been said that the successful party is prima-facie entitled to costs, and will recover unless the other party shall " show circumstances in a sufficient degree to displace the prima facie claim for costs.” Stone v. Locke, 48 Maine, 426, and cases there cited; 2 Dan. Ch. Pr. (oth ed.) c. xxxi, § 1, p. * 1376 et seq.

In actions of tort against a plurality of defendants, they are allowed to plead severally, and if they, or a part of them prevail, each of the prevailing parties is entitled to costs. But in equity, the mere fact that several prevailing defendants filed separate answers, does not entitle them to several costs, especially when they all have the same solicitor. Here the sound discretion of the court is called in, the decision of each case depending upon its peculiar facts and circumstances, the diversity being too great to render it practicable to lay down airy general rule which shall govern in such cases. 1 Dan. Ch. Pr. (5th ed) * 730 -1. • o

The bill aimed to charge certain real estate, the record title to which was in the defendant, Martha Leeman, with a judgment due from her husband, Eben Leeman, (another defendant) to the plaintiff’s intestate, on the ground .that it was purchased with the money of Eben and conveyed to Martha, without consideration, through a conspiracy between her husband and herself, and their respective fathers, the remaining defendants; and that at all events, some two or three hundred dollars of Eben’s pension money had been expended in repairing the buildings.

Each one of the defendants filed a separate answer, and appeared by one and the same solicitor, who admits in his deposition that he received his instructions from Eben, the judgment debtor. It also appears that no other defendant took any interest in taking the depositions. Under these circumstances each defendant may tax for an answer; but only one bill for costs subsequently accruing, to be taxed. Nothing should be ■taxed for the defendants for the hearing at Norridgewock, they ■not having prevailed. 2 Dan. Ch. Pr. (5th ed>) * 1379. Nothing for drawing interrogatories, as none were drawn and filed, which are those contemplated by the fee bill. Nothing for the depositions of the defendants; for they were not admissible in evidence. The remaining items of the bill of costs as taxed by the clerk for Eben Leeman, to be allowed. Now that all bills in equity are to be heard in the first instance, with one exception, by a single justice at a nisi prius term of court, or at chambers, the travel and attendance should be taxed as in actions at law, when the case is heard or made up at a regular term of court.

Exceptions sustained. JSTo costs to either party after the appeal.

Appleton, C. J., Barrows, Daneorth, Libree and Symonds, JJ., concurred.