Benjamin v. Wheeler

Decided September 15, 1861

Massachusetts Supreme Judicial Court · decided 1861-09-15

This case, which was commenced in the court of common pleas, was removed into the supreme judicial court by agreement of parties, where it remained upon the docket for one year, when it was remitted to the court of common pleas. At the trial, which was afterwards had in the superior court, the defendant obtained a verdict, and the clerk allowed him to tax costs for those terms while the case was pending on the docket in the supreme judicial court.

Decided 1861-09-15

Bigelow, C. J.

¶1We think that the costs, which were incurred while the case was pending on the docket of this court, were rightly allowed. They come within the principle, by which costs are allowed to parties in cases of which the court has no jurisdiction. Cary v. Daniels, 5 Met. 236. Jordan v. Dennis, 7 Met. 591. It was necessary for the defendant to appear and attend to the case, while it was pending here. The fact that it was removed to and entered in this court by a mutual mistake of the parties does not affect the right of the prevailing party to recover his full costs. Such mistake did not prevent the defendant from incurring costs in this court, nor did it relieve the plaintiff from paying them in the event that he did not maintain his suit.

¶2Taxation affirmed.