Pingree v. Snell , 46 Me. 544 ( 1859 )

The opinion of the Court was drawn up by

Cutting, J.

It was decided in the case between these same parties, (42 Maine, 53,) that, under the R. S., c. 115, § 22, an offer to be defaulted for a specific sum, filed at the first and accepted at the second term, and before proceeding to trial, did not entitle the defendant to his costs accruing after such offer; and by a subsequent decision (not reported) that the plaintiff could recover his costs up to the time of the default. As to the correctness of those decisions we entertain no doubt.

It is now contended that, in the revision of the statutes in 1857, and before judgment on the default, the former law, existing at the time of the previous decisions, has been materially changed, and that costs are taxable by the law in force at the rendition of judgment; and we are referred to c. 82, § 21. But the repealing Act of the prior statutes fully reserves and protects the parties’ rights in this particular.

But it is further contended that, at all events, costs should not be allowed after the default, because, says the counsel, the defendant is then out of Court, and consequently has no further control of the action. This conclusion is not always correct, for, after a default, the defendant has a right in certain cases to be heard before the Court or jury in damages, and much time may elapse and expenses accrue by such intervention; and so long as questions are pending in relation to the amount of damages or costs before the Court, especially on exceptions, it becomes necessary to retain the action upon the docket, to save, perhaps, an attachment or a seasonable record; and we perceive no reason why one party, under such circumstances, should thus delay the other with impunity.

Exceptions overruled.

Tenney, O. J., and Appleton, May, Davis, and Kent, J. J., concurred.