Avery v. Holmes

Gilchrist, J. The only question in this case is one which relates to the effect of the second verdict upon the order of the court limiting the costs upon the first trial. The act of July 2, 1838, provides that in all actions of re-., view which shall hereafter be commenced and prosecuted in any suit commenced after the passage of this act, neither party shall recover any costs except such as accrued in said action of review, &c.; and in all cases where the plaintiff in the original action sues out a writ of review for the purpose of recovering increased damages, he shall recover no. more, cost than the amount by which said damages may be increased. The costs of the plaintiff cannot be limited by this act to the amount of damages, unless the action were commenced since the 2d day of July, 1838. As it does not appear that this suit was brought since that date, the act referred to has no application in this case. Upon the first trial the plaintiff recovered only $>2'82 damages, and the court limited his costs by virtue of the authority conferred on them by the 13th section of the act of December, 1832, to allow in such cases such costs only as they shall deem proper. The court, having this power, considered [576] that a proper ease for its exercise ; and so long as that verdict and judgment were not reversed, the taxation of costs remained binding upon the plaintiff. But the plaintiff might under the statute sue out a writ of review. This is, in its nature, a new trial of the issues before tried. Burley vs. Burley, 6 N. H. Rep. 204. Upon another trial he might obtain a verdict for such a sum as not to call for the exercise of the discretionary power of the court. Accordingly, upon the second trial there was no case for the exercise of this power, as he recovered more than $13-33 damages. This is a reversal of the former judgment. It shows it to have been erroneous ; and the power of the court having been exercised only upon the ground that the verdict was for a sum less than $13-33, and that verdict having been shown to be wrong, the ruling of the court, which depended upon that verdict, is no longer operative. In consequence of that verdict, the costs were limited. Since the second verdict we must hold that the plaintiff on the first trial was curtailed of his just claim for costs, by an erroneous verdict. As the error is now corrected by a verdict for increased damages, the plaintiff may now recover, in addition to the costs of this review, his full costs of the former trial. The case is unlike that of Woodbury vs. Parshley, ante 392, as there the plaintiff was not the prevailing party on the review.