148 Mass. 603 | Mass. | 1889
The damages and costs recovered in an action, unless under special statute provision, as in the case of a
Until the Revised Statutes, the time of rendering the judgment was not affected by an appeal from the taxation of costs by the clerk, though the party could not take out execution while an appeal was pending unless he gave the bond required by statute. Winslow v. Hathaway, 1 Pick. 211. See Dodd v. Lewis, 10 Mass. 26; St. 1829, c. 52. The Rev. Sts. c. 121, § 29, provided that when there was an appeal from the taxation of costs by the clerk, whether by a plaintiff or defendant, the judgment should be considered as rendered on the day when the costs were finally taxed and allowed, except when the bond was given. The same provision is in the Pub. Sts. c. 198, § 25.
In the case at bar there was an appeal by the defendant from the taxation of costs, and no bond was given. There was consequently no judgment upon which an execution could issue until the costs were finally taxed and allowed. A waiver by the defendant of his appeal, or a waiver by the plaintiff of all costs, and perhaps, if the appeal was from the allowance of particular items, of those items, would be a final taxation and allowance. When the plaintiff took out his execution, there had been no taxation by the court, and no waiver of his appeal by the defendant ; and unless the plaintiff waived his costs, the appeal was pending, there was no judgment rendered, and the execution was void. We think that the plaintiff must be deemed to have waived his costs by taking out his execution for damages only, not only because he could have but one execution for damages and costs, but because, unless he is deemed to have waived his costs, there was no judgment on which an execution could have issued. Jarvis v. Mitchell, 99 Mass. 530.
Plaintiff not entitled to costs.
