Hyde v. Cole

~Wbight, C. J.

This question must be decided by reference to tbe Code. Two sections bear upon it. “Section 1811. Costs shall be recovered by tbe successful against tbe losing party. But where the plaintiff is successful as to part of his demands, and fails as to others, an equitable apportionment of costs may be made by the cour.t.”

“Section 2556. In all cases, unless otherwise provided, the party in whose favor judgment is given, shall recover *108 costs; but all courts may allow or refuse costs, at tbeir discretion, upon all motions.”

Now, was “the plaintiff successful as to part of her demand” in this case? Certainly not, for she submitted, as this record shows, to a voluntary nonsuit, final judgment was rendered by the court, and she in fact failed as to her entire demand. Then, was this plea in abatement, or the motion of the plaintiff, dismissing her suit, such a motion as is contemplated by the concluding part of section 2556? We think not. What is there meant, is, that a discretion is given to courts to allow or refuse costs on the various motions, proceedings consequent upon demurrers, and matters of that character, that arise during the progress of a cause. But such discretion does not exist, within the meaning of that section, when a case is dismissed, on motion, or by reason of a plea in abatement. In this case, the defendant was the successful, and the plaintiff the losing party, and the former should have recovered his costs. The judgment was in his favor, upon a plea that went to the capacity of the plaintiff to sue. As to that jaroceeding, such judgment was final; it was not a decision upon a. mere motion or demurrer. We think, therefore, the court erred in requiring the defendant to. pay any part of the costs in this ease.

Judgment reversed.