54 Me. 436 | Me. | 1867
This was an action of trespass quare clausum, originally brought before a trial justice, by whom judgment was rendered in favor of the plaintiff, from which the defendants appealed.
When the cause came for trial in this Court, upon the plaintiff’s motion, the appeal was dismissed on account of irregularity in the recognizance. In such case this Court have jurisdiction so far as to allow costs to the prevailing party. Call v. Mitchell, 39 Maine, 465. In all cases in which an action is dismissed for want of jurisdiction in the court in which it is commenced, the defendant is entitled to a judgment for costs. Hunt v. Hanover, 8 Met., 343; Elden v. Dwight Manufacturing Co., 4 Gray, 201.
In the taxation of costs, the plaintiff taxed for his own travel and attendance and for that of his witnesses, who were present when the action was dismissed. The presiding Justice disallowed the taxation of the plaintiff’s witnesses and allowed the remaining costs as taxed. No reason is shown for this discrimination. The plaintiff was bound to be ready for trial. He could not foreknow the result of his motion, and, if adverse, he would have no excuse for want of readiness. By R. S., 1857, c. 82, § 94, "in all actions, the prevailing party shall recover costs, unless otherwise specially provided.” There is no special provision depriving this plaintiff of his costs. The burden is on the party objecting to their taxation to show good cause for their disallowance. This he has not done. No reason appears in the exceptions on account of which they were disallowed. The presumption is that they should have been allowed, no cause being shown to the contrary.
.Exceptions sustained.
