Constanzo v. Central Railroad

64 A. 1067, 74 N.J.L. 79, 1906 N.J. Sup. Ct. LEXIS 29

• Court: Supreme Court of New Jersey
• Decided: November 12, 1906
• Status: Published

Opinion

The opinion of the court was delivered by

Garretson, J.

The case is an action of replevin tried in the District Court by the judge without a jury. Judgment was rendered for the plaintiff for possession of the goods, but no costs or damages were awarded.

The appeal was taken by the plaintiff because no damages or costs were awarded to him. There is no appeal from the finding of the judge as to the possession of the goods, so that whether the detention by the defendant was lawful or unlawful cannot now be considered.

It appears from the state of the ease agreed upon that the plaintiff gave evidence as to the damages which he claims to have suffered by the unlawful detention of the goods, and the judgment of the court not including any award of damages, the only conclusion we can draw from such finding is that the judge, upon consideration of the evidence upon that subject, concluded that the plaintiff had not suffered any damage.

That finding of a question of fact we cannot review on this appeal.

As to the failure to allow costs, we think the judge fell into error. A prevailing party is always entitled to costs, and unless some affirmative reason appears disentitling him to costs the judgment of the court should have included costs.

Under the act-of 1.902 (Pamph. L., p. 565) regulating appeals from District Courts, it is provided that this court may either order a new trial on such terms as it thinks fit or may order judgment to be entered for either party, as the case may he, and may make such order with respect to the dismissal and costs of the said appeal as such court may think proper. The judgment below is reversed.

The order of this court is that judgment he entered in the District Court for possession of the goods and the costs of the replevin suit.

The appellant is entitled to the costs of this appeal.