Ballou v. Smith

Eastman, J. No good reason occurs to us why the petitioner should not have his costs. The statute provides that “ costs shall follow the event of every action or petition, unless otherwise directed by law or by the court.” Rev. Stat. ch. 191, § 1. There is no provision of law disalloyying costs in proceedings of this nature, and the court are not inclined to disallow* them. The petition became necessary in consequence of a failure on the part of the magistrate to do his duty, in making out a copy of the recognizance, so that the petitioner could proceed with his appeal. It is not necessary that the petitionee intended to act improperly. It is sufficient that he failed to comply with the law, and that the petition for the mandamus became necessary in consequence of that failure. Whether the affidavits' can be taxed is a question of more doubt. Ordinarily, it is not the practice, in this State, to fax affidavits in a bill of costs. Various motions are oftentimes made in the progress of a cause, to sustain which, affidavits are introduced and used; but on all such incidental motions no costs were ever allowed. A different rule prevails in some other jurisdictions, and motions accompanied by affidavits are, upon decision, usually followed by costs to the one party or the other, in the discretion of the court. Pitcher v. Clark, 2 Wend. 631; Jackson v. Guernsey, 3 Cow. 385; Legg v. Kinney, 2 Wend. 255; Dews v. Eastham, 5 Yerger 233; Donalson v. Jackson, 9 Wend. 450. But we have no such rule or practice with us. We are inclined to think, however, that these affidavits should be taxed. They were taken upon the main issue before the court, — the issue whether the mandamus should be granted or not, — and they were necessarily used upon that question, the decision of which settled the whole mat [415] ter pending in court. It was not an incidental or collateral motion that was to be settled, but a question involving the entire issue presented by the proceedings. Costs allowed.