House v. Lockwood ( 1888 )

Per Curiam.

The action was in equity for a strict foreclosure of a deed alleged to have been a mortgage. Upon the first trial which took place, the complaint was dismissed, but on an appeal from the judgment it was reversed, and a new trial ordered. Upon the second trial the defendant again succeeded, and, as a part of his costs and disbursements allowed in the action, the clerk included the costs and disbursements on the appeal, in which the plaintiff had proved successful. This he had no authority to do; and, as the point has recently been so considered and decided in Durant v. Abendroth, ante, 538, all that is necessary now is to refer to the opinion in that case for the reasons upon which these items should have been disallowed.

The clerk also adjusted in favorof the defendant the costs and disbursements upon the first trial, and that he was authorized to do by the decision which was made after the second trial of the action. For by that decision the complaint of the plaintiff was dismissed, witti costs. The costs were in the discretion of the court before which the final trial took place, which discretion was exercised in the defendant’s favor; and, as long as the judgment dismissing the complaint in that manner remains in force, the defendant was entitled to have adjusted in his favor all the costs in the action, excluding those incurred in the appeal, which were before disposed of by the order reversing the judgment, and directing a new trial. The judgment, to this extent, is as conclusive against the plaintiff as any other direction or decision contained in it, and cannot be questioned or disregarded collaterally, as it would be if this direction for the allowance of costs should be now modified or changed by this court. The direction giving costs in favor of the defendant is equivalent to the statutory right securing costs to the successful party in cases known as legal actions, and for that reason this part of the case is also within the decision which has just been referred to. So much of the order as included costs and disbursements on the appeal should be reversed, and such costs deducted from the adjustment made" by the clerk; but as to the residue the order should be affirmed, without costs.