Plimpton v. Baker

26 Mass. 70

Opinion

Per Curiam.

The provision of the statute, that where the judge shall certify that the plaintiff had reasonable ground to appeal, the plaintiff shall recover his costs, does not mean that in all such cases he shall recover full costs. If the damages recovered are less than twenty dollars, he is entitled to costs u. the amount of one quarter part of the damages. Here he has recovered one dollar as damages and full costs. Therefore if the certificate had been given in due time, the judgment would still be erroneous.

But we think the certificate was made too late. The statute clearly implies that it shall be given before the judgment is entered up. The parties are then both in court, when there may be a motion for a certificate and a hearing upon the motion, without any formal notice. The judge here gave the certificate without considering the question whether it would avail the plaintiff, and for the reason above stated we are all of opinion that it can have no effect. The only ground, if any, on which the judgment can be supported, is, that the suit was in the nature of a real action, but we have not before us the facts required to present this question.¹

1 See Revised Stat c. 121, § 10 ; Briggs v. Murdock, 13 Pick. 321, Barney v. Keith, 6 Wendell, 555.