Inhabitants of Stetson v. County Commissioners of Penobscot County

The statute which gives costs "in all actions” to the prevailing party, does not apply to this case. Certiorari is not an action at law. The writ is not one of right. Nor does it comport with the nature of the proceeding that costs should always be allowed. Ex parte Cushman, 4 Mass. 565 ; Hopkins v. Benson, 21 Maine, 399.

Costs in certiorari are regulated by R. S., c. 102, § 14, which provides that "upon every application for certiorari, and on the final adjudication thereof, the court may award costs against any party, who appears and undertakes to maintain or object to the proceedings.” Substantially this provision has existed ever since the statutes were revised in 1841.

By this section a limit is imposed upon the discretion of the court. Costs cannot be awarded against a party who appears *19and does not defend against tbe proceeding. This is because a person who has acted in a judicial capacity ought not to be subjected to costs, in cases where his errors are corrected without any opposition on his part. He stands in the position of a respondent in equity, who puts in a disclaimer. In equity, the complainant having had probable cause to proceed against a respondent who disclaims, neither party recovers costs. 1 Barb. Ch. Pr, 172.

If the petition be refused, costs may bo awarded to the respondent then; but if allowed, costs may be awarded to the petitioner recoverable when the proceedings are closed. There should be but one judgment for a party for costs, as is ordinarily the-practice in equity.

This writ was granted without opposition or objection. Complainants should have no costs on the petition. It does not appear ■ to us whether the writ was contested or not. The judge who' tried the case, whose exercise of discretion governs, allowed costs.

Judgment for costs must be against the commissioners. The county is not a party. The commissioners can charge the judgment against the county, no obstacle being interposed, and obtain indemnity in that way.

Costs allowed upon the writ.