Carchidi v. Kalayjian
| Decision Date | 29 June 1928 |
| Citation | 162 N.E. 340,264 Mass. 230 |
| Parties | CARCHIDI et al. v. KALAYJIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Plymouth County; Dillon, Judge.
Suit by Joseph Carchidi and another against Satenik Kalayjian. From the decree, complainants appeal. Affirmed.R. W. Higgins, of Brockton, for appellants.
Edmund J. Campbell, of Dorchester, for appellee.
This is a suit in equity. A final decree was entered wherein the defendant was ordered to pay to the plaintiffs money damages in a definite amount and costs in a specified sum. The plaintiffs appealed from that decree to the Supreme Judicial Court. By the rescript on that appeal (156 N. E. 835) it was ordered that the final decree be affirmed with costs. On hearing after rescript a final decree was entered ordering the defendant to pay to the plaintiffs the same money damages and costs in a specified sum, in which were included both the costs mentioned in the earlier decree and the costs incurred by the plaintiffs in connection with their appeal.
[1][2][3] The single point argued is whether the costs of the plaintiffs on their appeal to this court rightly were included in the amount of costs thus specified in the final decree after rescript. There can be no doubt of the power of the court to award costs in equity to the prevailing party. G. L. c. 261, § 13. In a suit in equity an order by rescript of this court that a decree be affirmed with costs means that, in addition to whatever costs, if any, may have been included in the decree under review, there shall also be taxed in the final decree to be entered after the rescript the costs of the prevailing party in the full court on the proceedings for review. Instances may be found where, out of excess of caution to express the view of the court with such clarity of emphasis as not to be capable even of argument as to construction, it has been said that the final decree is to be modified so as to include the costs of the appeal and as thus modified is affirmed. See, for example, Graves v. Hicks, 191 Mass. 102, 103, 77 N. E. 831;Jennings v. Demmon, 194 Mass. 108, 113, 80 N. E. 471;Elliott v. Baker, 194 Mass. 518, 523, 80 N. E. 450;Staples v. Mullen, 196 Mass. 132, 134, 81 N. E. 877. That amplification has been thought to savor somewhat of prolixity and the briefer form of the rescript here in issue has been more commonly used. See, for example, Romanausky v. Skutulas, 258 Mass. 190, 196, 154 N. E. 856;Rothstein v. Commissioner of Banks, 258 Mass. 196, 199, 155 N. E. 7;Beauregard v. Smith, 258 Mass. 219, 154 N. E. 546;Wilkisius...
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