The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1852-01-31

IAC Subsequent PioOCCuiiiS, hSNo''"iy w
continue and carry Ola to their termination,
suits commenced under the former prac-
tice, the prior proceedings in which are
sanctioned and upheld by sec. 4, above
quoted. Many Of the provisions relating
to parties, pleadings, issues and judg-
ments. for example, are inapplicable to
suits commenced before the first of Sep
TENDER last; but it will hardly be conten-
ded think, that the chapter on evidence,
or the provisions relating to contempts, or
those relating to notices and the service Of
papers, are not applicable to such suits.
The conclusion | have arrived at, not
without hesitation, however, is that the
provisions of the Revised Statutes, are to
be applied, so far as they can be without
violence and inconsistency, to tho subse-
quent proceedings, in suits pending when
they took effect. think that was the in
tention of the law makers.
The next inquiry is, whether the pro-
visions respecting costs, are among those
applicable to suits commenced before
the Revised Statutes were in force, but
determined afterwards. | see no serious
objection in the way Of applying them to
such suits. There is nothing on the face
of the provisions themselves, which mill
tates against it-nothing in their nature
or the subject matter Of them to prevent
it and | am not aware that it would de-
rogate from any previously acquired rights.
Should a case arise. where such rights
would be injuriously affected by it, it
would so far have to be made an eXcep-
a.. t. in
that where an action was commenced under
the code of 1913, and decided after the
code of lS49 went into effect, the costs
must be regulated by the latter, 2 Code
Rep, 46; which is confirmation Of the
view have taken Of this matter.
The remaining question presented by
this motion, is not less embarrassing than
the two proceeding.
The Revised Statutes have nowhere
expressly provided that party shall re-
cover costs in an action appealed from a
Justices court, except in the single in
stance when the plaintiff who has recov-
cred judgment below, appeals from it
and fails to recover larger a amount in
the court above. In that case, costs are
given to the defendent. r. S. 373, sec.
25. But it would be strange and incon-
sistent il he could recover costs under
such circumstances, and yet could not, if
the Judgment was wholly in his favor on
the failure of the plaintiff to recover any
thing. 1t would therefore seem to be i'm
piled, that costs are recoverable on appeal
from a Justices court, in other cases.
The intention Of the Legislature to allow
them, is rendered nearly certain by sub.
,, sec. 1913, p. 3l5, r. S., which requires
the party bringing an appeal from JUS
tees Judgment, to enter into rccogni-
, Zance with surcties to the adverse party,
in a sum sufficient to secure such iudg-
ment, and the costs of appeal" If
judgment is rendered against the appel
liant in the appellate court, such judg ment
is 10 be against him and his sureties in
the recognizancc. And it is legitimate
inference, that the judgment is to be CO.
extensive with their liability, which is for
the costs Of the appeal, as well as the
amount Of the judgment below.
In opposition to this view it may be
said, that these provisions are to be con-
strued in connection with the provisions
of sections 2, 4, 5, Of chapter II, pages
80 and 371, r. S. and that only in cases
where costs are given by these sections.
are the sureties liable for them. But
am of the opinion, that these sections do
not apply to actions removed by appeal
from a Justices court. BY sub. 4, of
section ?, costs are given to the plaintiff
in an action for the recovery of money
only, when he RECEIVERS one hundred
: dollars or more. This he could rarely
do on appeal from court which has no
jurisdiction to render Judgment for sum
exceeding one hundred dollars. And
the very reason why the right of the
plaintiff to costs in the District court. is
by this subdlvIsi4p, made to depend on
his recovering at least one hundred dol
lars, is that for smaller sums, he should
sue IN Justices court. But this reason
does not apply 10 actions commenced be-
fore justice, and carried to the district
court by appeal nor to actions of which
a justice has not jurisdiction in any case
and therefore, the plaintiff is entitled to
costs IN the latter, although originally
brought in the district court, and although
he recover less than one hundred dollars
$40, R. S. ''' = f's'
Again, there is no reason why de-
iendant should recover costs on appeal.
IN an action commenced before Justice,
where such defendant is himself the an
pellant, and the plaintiffrecovers less than
fifty dollars in the appellate court, even
though that Is more than he recovered in
the court below. But to hold that sec.
ton 4, page 81, r. S. applies to appeals
from Justices courts, as well as 10 no.
lions commenced in the district courts
would lead to that absurdity. There is
less difficulty in applying the provisions