Summary
prevailing party's entitlement to costs is prima facie only and not absolute
Summary of this case from Cutter v. Town of FarmingtonOpinion
No. 5648.
Submitted September 8, 1967.
Decided October 31, 1967.
1. The statute (RSA 525:1, 3) providing for the allowance of costs in "every action or petition, unless otherwise directed by law or by the court" grants discretionary power to the Superior Court with respect to the allowance of costs.
2. The statute (RSA 502-A:30) providing that in civil actions in district courts "travel and attendance of parties and other costs and fees shall be allowed as in the superior court" by implication grants to district courts the same discretion as the Superior Court has with respect to costs.
3. The question presented by a motion for costs by a prevailing party in a civil case is one of fact determinable by the court to which the motion is addressed; however, the discretion to be there exercised is not unlimited.
Action in assumpsit to recover for goods sold and delivered. Trial by the court resulted in a verdict for the plaintiff in the amount of $105. No costs. Plaintiff thereafter moved that the verdict be amended to include costs. This was denied subject to plaintiff's exception which was transferred by Maurice P. Bois, acting justice.
Harkaway, Barry Gall for the plaintiff.
Albert F. Almasy, pro se, filed no brief.
RSA 525:1 provides that "Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court." This section, together with RSA 525:3 gives the Superior Court discretion with respect to the allowance of costs. Averill v. Mathes, 55 N.H. 617; Hatch v. Rideout, 96 N.H. 122. RSA 502-A:30 provides with respect to civil actions in district courts that "Travel and attendance of parties and other costs and fees shall be allowed as in the superior court . . . ." This section by implication gives the district courts the same discretion as the Superior Court has with respect to costs.
This discretion, however, is not unlimited. In Clement v. Wheeler, 25 N.H. 361, 368, it was said that the general rule is "that the prevailing party is prima facie entitled to costs . . . . The failing party must show the court that it would be contrary to the ordinary principles of justice that he should pay the costs of the proceeding." See also, Preston v. Cutter, 65 N.H. 85; Lyford v. Bryant, 38 N.H. 88; Belknap v. Railroad, 48 N.H. 388.
In the case before us the acting justice made an order of "No costs." "The question of justice presented by [plaintiff's] motion for costs, was a question of fact determinable [by the district court]. The decision of that question required a consideration of evidence that is not stated in the case." Mudgett v. Melvin, 66 N.H. 402, 403. We are unable to say, therefore, that the court below abused its discretion.
Exception overruled.