
    Robert Smith v. Abner Hubbard.
    
      Awan'd of costs in appeal cases not reviewed.
    
    The discretion of a circuit judge in awarding costs in appeal cases is not reviewable by the Supreme Court.
    Error to Saginaw.
    Submitted June 15.
    Decided June 22.
    
      Assumpsit. Plaintiff recovered judgment before a justice for $40.29 damages and $10 costs; on an appeal taken by tbe defendant he again obtained a verdict and bis damages were assessed at $50, but defendant was given costs. Plaintiff brings error.
    Affirmed.
    
      F. L. Eaton for plaintiff in error.
    Tbe successful party in a suit at law should recover costs: Bouv. Law Dict. Costs; Statute of Gloucester, A. D. 1278; 3 Terr. Laws, 1158; Rev. Stat. 1846, cb. 149, § 3; Comp. L. 1871, §§ 5375, 5459, 7387, 7427; costs on motions -are allowed to tbe prevailing party as a matter of course unless some special reason is shown: O'Flynn v. Eagle 7 Mich. 306 ; Ireland v. Spalding 11 Mich. 455; an unjust award may be reviewed: Knox v. Arnold 1 Wis. 71; Heeron v. Beckwith, id. 17; Bean v. Moore 2 Chand. (Wis.) 44; Benaway v. Coyne 3 Ohand. 214; Rich v. Hathaway 18 Ill. 548 ; Gallagher v. People 91 Ill. 590; Andrews v. Campbell 94 Ill. 579; Schroer v. Wessell 89 Ill. 113; Mitchell v. Shuert 16 Mich. 444; Yamkey v. Richardson 9 Mich. 529.
    
      Wm. II. Sweet for defendant in error.
    Tbe power of tbe circuit court to award costs on appeal is discretionary and not open to review: Holbrook v. Cook 5 Mich. 225 ; Chaffee v. Soldan id. 242; Van Renselaer v. Whiting 12 Mich. 449 ; Beaubien v. Cicotte id. 485; Johr v. People 26 Mich. 427; Polhemus v. Ann Arbor 27 Mich. 44; discretion is presumed to have been properly exercised: Somerville v. Richards 37 Mich. 302.
   Marston, C. J.

While we are of opinion that costs should have been awarded tbe plaintiff in error in this case, and can conceive of no reason for tbe same not having been given, let alone giving of costs against him as was done, yet within tbe rule in Hewitt v. Ingham Circuit Judge 44 Mich. 153, we cannot review tbe discretion of tbe circuit judge even although we may think no discretion was exercised.

Tbe judgment will be affirmed with costs.

Tbe other Justices concurred.  