Koon & Horton v. Thurman

By the Court,

It does not appear to have been denied on the taxation that the costs were, on our granting the new trial, order to abide the event. The taxing officer put his disallowance on the ground that we had not awarded costs to the defendants. The rule is now produced, whence it appears that they were to abide the event. Such a rule I miderstand to mean, the costs of the motion for a new trial as well as the costs of the trial itself.

It is supposed that the dictum, in The People, ex rel. Manning, v. New- York C. P. (13 Wend. 649, 655,) conflicts with this construction of the rule. The point does not appear to have been involved in that case; and beside, the dictum was applied to costs on error in a court other than that where they were allowed. The remark in that case, that a party is never entitled to costs of a trial or motion in which he is unsuccessful, (p. 655,) must be taken with many qualifications; and one is, I .think, where the costs of opposing a motion for a new trial are ordered to abide the event, and the party so opposing succeeds in the trial ordered.

Motion granted.