Sledge v. Obenchain

Cooper, J., delivered the opinion of the court. Where costs are not a matter of right, but may or may not be given by the Chancellor in the exercise of judicial discretion, it has been held in many cases that no appeal lies from a decree where the only complaint is that such costs were or were not given. 2 Dan. Ch. Prac. 1377, n. 2. But where costs are given contrary to the established practice of the court, an appeal lies. Winslow v. Collins, 3 Paige, 88. It is evident that in all cases the appellate court must examine the record of the proceedings in the lower court sufficiently to enable them to determine whether the action of the court by which costs are awarded or refused was as to a matter resting in its discretion, or whether the party against whom the decree is made has been refused a right to which he was entitled either as a- part of his relief or under the established rules of practice ; but beyond [619] this point this court ought not to go, unless it be shown that the costs were awarded or refused in the exercise of an arbitrary power rather than of a sound judicial discretion. We are unable to say that the action of the court complained of in this case was clearly wrong, and only in that case could we disturb the decree of the Chancellor on a question resting in his discretion. Decree affirmed.