Taylor v. Gilman

The judgment to which the defendant is entitled is defined by the statute, which has stood without substantial change since 1838. When on review the defendant reduces the damages recovered in the orginal [original] action, he is entitled to judgment for the amount of the reduction and costs. Gen. Sts., c. 215, s. 11. No costs can be recovered except those accruing on the review. When the defendant reviews, he can recover no more costs than the amount of the reduction of damages, unless the original judgment is wholly reversed. Ib., s. 13. The defendant has wholly reversed the judgment recovered by the plaintiff in the original action, and therefore by the statute is entitled to a judgment for the whole amount of the reduction, $700, and costs of review. Interest should be computed upon the sum of $700 as damages for the detention of the money, from the time interest was computed on the same sum in the original action, which was the October term, 1878. Ordway v. Haynes, 54 N.H. 346; Shepard v. Hatch, 54 N.H. 96.

The party reviewing never recovers back as costs or as damages the costs adjudged to the other party in the original action. No such interpretation as the defendant contends for has ever been put upon the statute, and none of the cases cited by the defendant is authority for such construction. Otis v. Currier, 18 N.H. 85; Andrews v. Foster, 42 N.H. 376; Wiggin v. Janvrin, 47 N.H. 295; Ordway v. Haynes, 47 N.H. 9, 10. The rules of court have been framed upon the idea that the costs of the original action cannot be recovered back. The defendant cannot obtain a stay of execution until he pays the costs of the original action and files a bond conditioned to pay all such damages and costs as shall be adjudged against him on review, and the plaintiff may prevent a stay of execution by filing a counter bond to refund such sum as the damages shall be reduced on review. Rule 51,56 N.H. 590; Rule 48, 38 N.H. 592; Rule 47 of edition adopted July term, 1849.

Exceptions overruled.

BLODGETT J., did not sit: the others concurred.