Griswold v. Chandler

6 N.H. 61 | Superior Court of New Hampshire | 1832

By the court.

The statute, regulating appeals from the decisions of a Judge of Probate, enacts, that “ if, upon any such appeal, the decision of the Judge of Probate shall be reversed or altered, the said superior court may tax costs for the appellant, and issue execution therefor. And in case of affirmation they shall tax costs, and issue execution, for the appellee.” When the decree of the Judge of Probate is affirmed, the appeal fails, in tolo, and the appellant is in reality the prevailing party, and equitably entitled to costs. But when the decree is reversed, in part, although the appellant must, so far as the reversal extends, be considered as the prevailing party, yet, still, the appellee may, in reality, be the prevailing party with respect to the most important matter! in controversy, And we are of opinion that it was the intention oí' the legislature to leave it, in cases where the decree is reversed in part, to the discretion of the court to allow the appellant costs, or not, as might seem reasonable under the circumstances of the case.

In this cause we shall not allow the appellants their costs. It is true, in relation to some matters, they have prevailed, and the decree is in part reversed. But with respect to the most important matters in controversy they have wholly failed. Neither party is entirely in the right, and we shall leave them to pay their own costs.