Carchidi v. Kalayjian

162 N.E. 340, 264 Mass. 230, 1928 Mass. LEXIS 1254

• Court: Massachusetts Supreme Judicial Court
• Decided: June 28, 1928
• Status: Published

Opinion

Rugg, C.J.

This is a suit in equity. A final decree was entered wherein the defendant was ordered to pay to the plaintiffs money damages in a definite amount and costs in a specified sum. The plaintiffs appealed from that decree to the Supreme Judicial Court. By the rescript on that appeal it was ordered that the final decree be affirmed with costs. On hearing after rescript a final decree was entered ordering the defendant to pay to the plaintiffs the same money damages and costs in a specified sum, in which were included both the costs mentioned in the earlier decree and the costs incurred by the plaintiffs in connection with their appeal.

The single point argued is whether the costs of the plaintiffs on their appeal to this court rightly were included in the amount of costs thus specified in the final decree after rescript. There can be no doubt of the power of the court to award costs in equity to the prevailing party. G. L. c. 261, § 13. In a suit in equity an order by rescript of this court that a decree be affirmed with costs means that, in addition to whatever costs, if any, may have been included in the decree under review, there shall also be taxed in the final decree to be entered after the rescript the costs of the prevailing party in the full court on the proceedings for review. Instances may be found where, out of excess of caution to express the view of the court with such clarity of emphasis as not to be capable even of argument as to construction, it has been said that the final decree is to be modified so as to include the costs of the appeal and as thus modified is affirmed. See, for example, Graves v. Hicks, 191 Mass. 102, 103; Jennings v. Demmon, 194 Mass. 108, 113; Elliott v. Baker, 194 Mass. 518, 523; Staples v. Mullen, 196 Mass. 132, 134. That amplification has been thought to savor somewhat of prolixity and the briefer form of the rescript here in issue has been more commonly used. “See, for example, Romanausky v. Skutulas, 258 Mass. 190, 196; Bothstein v. Commissioner of Banks, 258 Mass. 196, 199; Beauregard v. Smith, 258 Mass. 219; Wilkisius v. Sheehan, 258 Mass. 240, 243. It states the same mandate in fewer words. Its meaning is unmistakable. It was the duty of the Superior Court in framing the final decree to follow the rescript and to tax costs as it did. Day v. Mills, 213 Mass. 585, 586, 588. If this court had intended that the costs of the appeal should not have been included in the final taxation of costs, the re-script would have read simply “Decree affirmed.” Where the rescript is silent as to costs, neither party is entitled to costs in the full court. See, for example, Ogden v. Selectmen of Freetown, 258 Mass. 139. If the defendant had desired to protect himself against costs on such appeal, he might have filed in court a written consent to be defaulted and “to have judgment rendered against him as damages” for the amount of money damages stated in the decree under the provisions of G. L. c. 231, §§ 74, 75, expressly made applicable to suits in equity.

Decree affirmed with costs.