
    Lemuel Counce vs. Persons Unknown.
    .Knox.
    Opinion December 26, 1884.
    
      Petition for partition. Costs. P. 8., a. 82, § 117; c. 88, \10.
    
    
      Ik petition, for partition is not an action within the meaning- of the statute which provides that in all actions the prevailing party shall recover costs. Costs are allowable only as provided in the statute regulating the proceedings in partition.
    '.Where no issue is raised as to the title of the petitioner, and judgment for partition is entered, the respondent cannot recover costs as matter of right. It is only when an issue is j oined and tried as to the right of the petitioner to partition that the prevailing party recovers costs, and then only up to the ■time when judgment for partition is rendered.
    Petition eor partition.
    The opinion states the material facts.
    
      .A. P. Gould, for the plaintiff.
    
      J. H. H. Hewett and G. JS. Littlefield, for defendants.
   Libbey, J.

This is a petition for partition against persons ¡unknown, entered at the September term, 1880. At the Decem-Iber term, 1880, the respondent, J. R. Studley, appeared, and without objection, judgment was entered for partition as prayed ior, and commissioners were appointed. At a subsequent term ‘the report of the commissioners was presented and objections filed to its acceptance, but the report was accepted and exceptions taken. The exceptions were sustained by the law court, and thereupon the petitioner moved to have his petition dismissed, and his motion was allowed.

The only question presented here is whether upon these facts, the respondent is entitled to costs as matter of law. We think it clear that he is not. A petition for partition is not an action within the meaning of the statute which provides that, in all actions the prevailing party shall recover costs. Moore v. Mann, 29 Maine, 560. Costs are allowable only as provided in the statute regulating the proceedings in partition. Where no issue is raised as to the title of the petitioner, and judgment for partition is entered, the respondent cannot recover costs as matter of right. It is only when an issue is joined and tried as to the right of the petitioner to ' partition that the prevailing party recovers costs as matter of right. E. S., c. 88, § 10. And then only up to the time when judgment for partition is rendered. Ham v. Ham, 43 Maine, 285.

Exceptions overruled.

Peters, C. J., Walton, Danforth, Emery and Foster, JJ., concurred.  