Darling v. Murphy

Per Curiam. On an appeal taken under section 175 of the revised Election law (Pamph. L. 1898, p. 315), this court reversed the judgment of the Circuit Court and the petition of-the-contestant was ordered to be dismissed. The question submitted is whether the appellant is entitled to his costs in this court. The provision for costs is to.be found in section 172. That section provided that the contestant and incumbent sháll be [525] liable to the officers and witnesses for the costs made by them, respectively; but if the election be confirmed, or the petition be dismissed, or the prosecution fail, judgment shall.be rendered against the contestant for costs; and if the judgment be against the encumbent, or the election be set aside, then he shall pay the costs at the discretion of the court. The defeated contestant insists that the right to costs rests upon statute, and that section 172 applies only to the costs due to officers and witnesses in the trial in the Circuit. The costs due to officers and witnesses are those for which the parties are respectively liable in the first instance, but does not necessarily include all the costs for which judgment shall be finally rendered. The provision for an appeal takes the place of a writ of certiorari and is made a part of the procedure in an election contest, and the costs upon appeal is controlled by the provisions of section 172. These costs, under rule No. 83 of this court, will include the costs of printing. The remittitur should be amended.