209 N.W. 326 | Minn. | 1926
Two questions are presented: Whether the state is entitled to recover costs and disbursements and, if not, whether defendants are entitled to recover them.
Although the amount involved is small, the question presented is of considerable importance as it frequently arises and seems not to have been passed upon since the change in the statute made in the revision of 1905. The statute, after providing that such appeals shall be tried according to the rules applicable to ordinary civil actions except as otherwise provided, adds:
"The court, in its discretion, may award to the prevailing party costs and the disbursements of the appeal." G.S. 1923, § 6550.
The former statute gave costs and disbursements to the prevailing party as a matter of right. The change in the statute evinces a *507 legislative intention to change that rule and to allow costs and disbursements only when awarded by the court in the exercise of its judicial discretion.
In the present case the state, having obtained a substantial reduction in the amount awarded as damages, is clearly the prevailing party on the appeal. But under the statute it is not entitled to costs and disbursements unless awarded to it by the court. It applied for such an award but the court denied the application, and we cannot say that the denial was an abuse of discretion.
The statute authorizes the court to award costs and disbursements to the "prevailing party," but does not authorize it to award them to any other party. The defendants are not the prevailing party, and consequently the statute did not authorize the court to award them costs and disbursements and the court erred in doing so.
The court is directed to modify its judgment by eliminating therefrom the amount allowed the defendants as costs and disbursements and when so amended the judgment will stand affirmed.