Walton v. Walton, 19 Mo. 667

Walton v. Walton

19 Mo. 667 | Mo. | 1854

Ryland, Judge,

delivered the opinion of the court.

This case has been in this court at a previous term ; it was reversed and remanded. See the case, 17 Mo. Rep. 876. It now comes here again, and the only matter for our consideration is in regard to the costs. The defendant below obtained a judgment for a small sum ; and as the costs in such eases as this are in the discretion of the court, we will not reverse the judgment that gives costs against the losing party.

“ In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.”

“Upon the complainant dismissing his bill in equity, or defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant his costs; and in all other cases in equity, it shall be in the discretion of the court to award costs or not, except in those cases in which a different provision is made bylaw.” R. C. 1845, tit. Costs, art. 1, secs. 6 and 18. *

The complainant contends that the act of the court, in permitting defendant to file an amended answer, was the basis for the success of the defendant in the action, and therefore the court should have made the defendant pay a portion of the costs. This may be strictly just and equitable ; but still it does not take away the discretionary power of the court below. The question here is, not what this court would have done in the *669premises, had the case been before us, as a court of original jurisdiction, but whether the court below has abused its discretion. We are not willing to say that there has been an abuse of such discretion in giving, costs for the defendant in this action. The other judges concurring, the judgment below will be affirmed.