SEVENTY-SECOND SESSION. When there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal shall be in the discretion of the court: 1. Where a new trial shall be ordered; 2. Where a judgment shall be affirmed in part and reversed in part. § 307. When allowed, costs shall be as follows: Amount of 1. To the plaintiff, for all proceedings before notice of trial ed. (including judgment when entered,) In an action where judgment upon failure to answer may be had without application to the court, seven dollars; in an action where judgment can only be taken on application to the court, twelve dollars; for all subsequent proceedings before trial, seven dollars; 2. To the defendant; for all the proceedings before notice of trial, five dollars; for all subsequent proceedings before trial, seven dollars; 3. For the trial of issues of law, if separate from the trial of issues of fact, to the plaintiff, fifteen dollars; to the defendant, twelve dollars; 4. For the trial of the issues of fact, if separate from the trial of the issues of law, to the plaintiff fifteen dollars; to the defendant twelve dollars; 5. For the trial of the issues of fact and of law, when tried at the same time, to the plaintiff twenty dollars: to the defendant fifteen dollars; 6. To either party on appeal, excepting to the court of appeals; before argument, fifteen dollars; for argument, thirty dollars: but this provision shall not apply to appeals in cases other than those mentioned in section three hundred and forty-nine; 7. To either party on appeal to the court of appeals; before argument, twenty-five dollars; for argument, fifty dollars; 8. To either party, for every circuit or term, at which the cause is necessarily on the calendar, and not reached or is postponed, excluding that at which it is tried or heard, ten dollars. in addition age on the § 308. In addition to these allowances, if the action be for the Allowance recovery of money, or of real or personal property, and a trial of a per centhas been had, the court may in difficult or extraordinary cases, recovery or make an allowance of not more than ten per cent, on the recovery claim. or claim, as in the next section prescribed, for any amount not exceeding five hundred dollars; and not more than five per cent for any additional amount. Such allowance may likewise be made, upon the recovery of judgment in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued, or for the construction of a will or other instrument in writing, and in proceedings to compel the determin Per centage, how computed.. Interest on ation of claims to real property, and also in any case where the prosecution or defence has been unreasonably or unfairly condueted. § 309. These rates shall be estimated as follows: 1. If the plaintiff recover judgment, it shall be upon the amount of money, or the value of the property recovered, or claimed, or attached, or affected by the construction of the will, or sought to be partitioned, or the amount found due upon the mortgage in an action for foreclosure; 2. If the defendant recover judgment, it shall be upon the amount of money, or the value of the property claimed by the plaintiff, or attached or affected by the construction of the will, or of the defendant's interest in property sought to be partitioned, or the amount claimed in an action for foreclosure. Such amount of value must be determined by the jury, court, or referees, by whom the action is tried, or judgment rendered, or the commissioners appointed to make partition in an action therefor. § 310. When the judgment is for the recovery of money, interverdict or re- est from the time of the verdict or report, until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto. port when allowed. be inserted in judgment. Costs how to § 311. The clerk shall insert in the entry of judgment, on the application of the pervailing party, upon two days notice to the other, the sum of the charges for costs, as above provided, and the necessary disbursements and fees of officers allowed by law, including the compensation of referees, and the expense of printing the papers upon any appeal. The disbursements shall be stated in detail, and verified by affidavit, which shall be filed. § 312. The clerk shall receive, Clerks' fees. Referees fees. Costs on postpone→ ment of trial. Costs on a motion. Costs against infant plain iff. On every trial, from the party bringing it on, one dollar; on entering a judgment by filing transcript, six cents; On entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts one dollar. He shall receive no other fee, for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words. § 313. The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation. § 314. When an application shall be made to a court or referees, to postpone a trial the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement. § 315. Costs may be allowed on a motion, in the discretion of the court, not exceeding ten dollars. § 316. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action, shall be responsible therefor, and payment thereof may be enforced by attach ment. action by or administra trust, or a $317. In an action prosecuted or defended by an executor, Costs in an administrator, trustee of an express trust, or a person expressly against an authorized by statute, costs shall be recovered, as in an action by executor or and against a person prosecuting or defending in his own right, tor, trustee but such costs shall be chargeable only upon or collected of the of an express estate, fund or party represented, unless the court shall direct the person exsame to be paid by the plaintiff or defendant, personally, for mis- pressly aumanagement or bad faith in such action or defence. But this statute to section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one, of title three, chapter six, of the second part of the Revised Statutes. thorized by sue. view of a court in a § 318. When the decision of a court of inferior jurisdiction in Costs on rea special proceeding, shall be brought before the supreme court decision of for review, such proceeding shall, for all purposes of costs, be an inferior deemed an action at issue, on a question of law, from the time the special prosame shall be brought into the supreme court, and costs thereon ceeding. shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. tions by the § 319. In all civil actions prosecuted in the name of the peo- Costs in acple of this state, by an officer duly authorized for that purpose, people. the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party and returned unsatisfied. § 320. In an action prosecuted in the name of the people of The same. this state for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff, shall be a charge against the party for whose benefit the action was prosecuted, and not against the people. assignee of § 321. In actions, in which the cause of action shall, by assign- Costs again st ment after the commencement of the action, or in any other cause of acmanner, become the property of a person not a party to the action, tion after acsuch person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attach ment. tion brought. § 322. Upon the settlement, before judgment, of any action Costs on a mentioned in section three hundred and four, no greater sum shall settlement. be demanded from the defendant as costs, than at the rates pre scribed by that section. III. Appeals to the supreme court from an inferior court. IV. Appeals in the supreme court, and the superior court, and the V. Appeal to the court of common pleas for the city and county of CHAPTER I. Appeals in general. SECTION 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 326. Parties how designated on appeal. 327. Appeal how made. 328. Clerk to transmit papers to appellate court. 329. Intermediate orders affecting the judgment, may be reviewed on the appeal. Writs of error abolished and appeals substituted. Orders made § 323. Writs of error in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title. § 324. An order, made out of court, without notice to the adout of court verse party, may be vacated or modified, without notice, by the or modified, judge who made it, or may be vacated or modfied on notice, in Who may the manner in which other motions are made. how vacated appeal. Parties, how designated on appeal. Appeal how made. Clerk to transmit pa pellate court. § 325. Any party aggrieved may appeal in the cases prescribed in this title. §326. The party appealing, shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed, in consequence of the appeal. § 327. The appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. § 328. Upon the appeal, allowed by the second and third chappers to apters of this title, being perfected, the clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll. Intermediate orders af judgment fecting the §329. Upon an appeal from a judgment, the court may remay be re- view any intermediate order, involving the merits, and necessarithe appeal, ly affecting the judgment. viewed on § 330. Upon an appeal from a judgment or order, the appellate Judgment on court may reverse, affirm or modify the judgment or order appeal- appeal. ed from in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment. peals to be § 331. The appeal allowed by the second and third chapters Certain apof this title must be taken within two years after the judgment. within two § 332. The appeal allowed by the fourth chapter of this title, years. must be taken, within thirty days, after written notice of the judg-peals within ment or order shall have been given to the party appealing. CHAPTER II. Appeals to the Court of Appeals. SECTION 333: In what cases. "Other ap 334. On any appeal security must be given to pay costs and dam- mortgaged premises. 339. Stay of proceedings upon security given. 340. Undertakings may be in one instument, or several. 341. Security to be approved and to justify. 342. Perishable property may be sold, notwithstanding appeal. thirty days. § 333. An appeal may be taken to the court of appeals, in the In what cacases mentioned in section eleven. ses. must be giv costs and § 334. To render an appeal effectual for any purpose, a written on any apundertaking must be executed, on the part of the appellant, by at peal security least two sureties, to the effect, that the appellant will pay all en to pay costs and damages which may be awarded against him on the ap- damages, peal, not exceeding two hundred and fifty dollars; or that sum not exceedmust be deposited with the clerk, with whom the judgment or or- deposit made der was entered, to abide the event of the appeal. Such under-uniess waivtaking or deposit may be waived by a written consent on the part of the respondent. ing $250, or ed. for money, tion. § 335. If the appeal be from a judgment directing the pay-On judgment ment of money, it shall not stay the execution of the judgment, security to unless a written undertaking be executed on the part of the ap- stay execupellant, by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal. be to deliver § 336. If the judgment appealed from, direct the assignment If judgment or delivery of documents, or personal property, the execution of documents the judgment shall not be stayed by appeal unless the things re- they must be deposited. |