Leighton v. Colby

56 Me. 79

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1868
• Status: Published

Opinion

Appleton, C. J.

— ByR. S., c. 82, § 94, "in all actions, the party prevailing shall recover costs, unless otherwise specially provided.”

By § 108, "a plaintiff shall not be allowed costs in an action on a judgment of any tribunal, on which an execution could issue when such suit was commenced, except in trustee process.” In other words, he shall recover costs in trustee process in an action on a judgment in which an execution might have issued when such suit was commenced. This was a trustee process, commenced in good faith and with no design to make unnecessary'costs. The officer made a return of service on the trustee. The trustee appeared and was discharged. The general rule is to allow costs to the prevailing party. The defendant does not bring himself within the special exemption from cost. He certainly is not within the language, nor is he within the spirit of § -108. The exemption from costs is not made to depend upon whether the trustee is charged or not. Thq suit does not cease to be a trustee process, because the trustee is discharged. Exceptions overruled.

Kent, Walton, Dickerson, Barrows and Daneortii, JJ., concurred.