Besser v. Alpena Circuit Judge

Grant, J. (after stating the facts). 1. Is the de [633] fendant entitled to the costs of the issue decided in his favor ? The statute upon the question is section 11267, 3 Comp. Laws, and reads as follows: “When there-shall be several issues in any case, and a verdict shall be rendered for the plaintiff on one or more of them, and for the defendant on another, if the plaintiff obtain judgment upon the whole record, costs shall be awarded as follows: (1) When the substantial cause of action was the same in each issue, the plaintiff shall recover costs- on those issues which were found for him, and shall not be liable to the defendant for the costs of the issue which shall have been found for the defendant. (2) When there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.” This statute was copied verbatim from the statutes of New York. The supreme court of that State had construed the statute to apply to a case of this character. Seymour v. Billings, 12 Wend. (N. Y.) 285. In that case the declaration contained one count, covering two distinct parcels of lumber claimed to have been unlawfully detained by the defendant. As to one parcel the issue was decided for plaintiff, as to the, other, for the defendant; and the court held that the defendant was entitled to the costs of the issue decided for him. This statute is presumed to have been adopted by the legislature with reference to the construction placed upon it by the courts of that State. Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272. The court below properly, allowed the amendment. 2. Is the plaintiff now entitled to a bill of exceptions to review alleged errors upon the trial which took place six years ago ? His claim is based upon the theory that there was no final judgment to be reviewed until the judgment was amended in the particulars named. Plaintiff’s motion to amend was a matter of course, and could be made at any time. The defendant’s motion related to costs simply, and did not call in question any of the proceedings [634] upon the trial. Both were technical omissions from the judgment, to be remedied upon motion.. Either party could at once, upon entry of the original judgment, have prepared a bill of exceptions, and brought the case to this court by writ of error. As to the merits <■ of the controversy, that judgment was final. Plaintiff rested upon its finality for two years. His attempt to review proceedings upon the trial comes too late. The writ is denied. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.