Parton v. . Boyd

MerbimoN, C. J. (after stating the case): The cause of action in this case is equitable in its nature, and the action is one in which the Court will administer the diverse rights of the parties coming within its scope, as they may appear, giving judgment in favor of the plaintiff in one or more respects, and in favor of the defendants in others, and allow costs in favor of one party or the other, or require the parties to share the same, in its discretion. This action is not one of those classes of actions in which the plaintiff is entitled to costs, as of course, if be recovers, as allowed by the statute (The Code, §§ 525,526), or in which the defendant is so entitled if the plaintiff fails to recover. Hence, it is one of those in which costs may be allowed, in the discretion of the Court, as allowed by the statute (The Code, § 527). The purpose of this provision is to give the Court authority, in cases like the present one, to allow costs, as the justice of the case may require. Gulley v. Macy, 89 N. G, 343. The purpose of this action was not to recover real property, nor did a claim of title to such property arise upon the *424 pleadings, nor did the Court certify that such title came in question at the trial, nor did the action, in any aspect of it, come within the statute. (The Code, §525.) Its purpose was simply to compel the specific performance of an execu-tory contract, and to adjust certain rights involved in an account of moneys collected and certain indebtedness incident to that contract. Clearly, the action comes within the statute (The Code, §527), and, therefore, the Court could allow costs therein, in its discretion. The Court gave judgment against the plaintiff for costs, and the presumption is, nothing to the contrary appearing, that it did so in the exercise of its discretionary authority. Such exercise of authority is not reviewable here. The statute does not so provide. To so review it, would be to substitute the discretion of this Court for that of the Court below. If the Court gave such judgment upon the ground that it was bound in law to do so, and this appeared, then it would be reviewable — not otherwise. Affirmed.