
    The People, ex rel., Wm. H. Green vs. The Highway Commissioners of the Township of Coldwater.
    Costs on tbe decision of an. application for a mandamus aftcran order to show causa has bfeen issued, ánd a showing made in answer thereto by affidavits, are taxed os on a motion" and’notafl in ordinary suite at law in favor of the prevailing parties,
    2. The ofder to show cause is answered by affidavits, and when heardon sack answer the proceedings aro treated and considered prior to the is^uingof the writ of mandamus as a motion or an application for the issuing of the writ, and under Act No. 28, Laws of 1869; page ■S3, costs in such proceedings ore to be awarded as in cases of special motion.
    
      Branch Circuit,
    
    
      February, 1871,
    Motion for re-taxation of costs.
    Upon the application of the relator in this case an order to show cause had been issued to the Commissioners of Highways, who had answered the same by affidavits, and on the hearing, a motion for a mandamus had been denied. The Commissioners, however, claimed that as in the order denying the motion, timo had first been given to the relator to traverso the facts set up in the answer or affidavits, if he saw fit, so as to tender an issue of fact for trial, and that as the relator had elected not to do so, the attorney for the Commissioners had formally entered his default on the expiration of the time, making the order denying the motion absolute, with costs, and therefore they were entitled to tax under Act No 28, Laws of 1869, page 32, costs as in a judgment taken by default and paid accordingly, included $15 in their bill of costs under that head. The relator objected to the taxation.of this item, and appealing therefrom moves for a retaxation.
    
      Shipman & Lovcridge and C. B. Pratt, Attorneys for Relator.
    
      B. T. N. Wilson, Attorney for Commissioners,
   By the Court,

Upson, J.

Applications for a mandamus in which a rule or order to 'show cause has been granted and a hearing had on answef made to such order by affidavits, have usually been considered and treated as motions. 1 Doug. Mich. R., 302, 319, 417, 434; 2 Id., 121; 1 Mich., 134, 359; 2 Id., 188, 192; 3 Id., 427; 4 Id., 187; 9 Id., 134, 141, 327, 328; 11 Id., 111, 222; 12 Id., 171, 191; 16 Id., 204; 17 Id., 67, 159, 338, 341; 18 Id., 247, 254, 338; 19 Id., 203, 351.

And costs on such hearings in the Supreme Court are somewhat discretionary, and are given or denied as on motions. In the following eases costs weré denied, viz: 2 Mich., 188; 5 Id.,223; 17 Id., 338; 19 Id., 470. In the following cases costs-were allowed, viz: 11 Mich., 60,222; 15 Id., 156; 17 Id., 260; 18 Id., 247; 19 Id., 203, 296.

The order in granting costs also usually specifies or fixes the amount, notwithstanding Rule, 48 of the Supreme- Court, in regard to the amount of costs to be' allowed to the “ prevailing party.” 15 Mich., 155; 18 Id., 247.

In each of the caseg.last cited the Court allowed but $10 costs, although Rule 48 of said Court allows “ in eases disposed of upon argument a counsel fee of $30.” Subh applications for a mandamus were evidently not considered as included in that rule, although in 11 Mich., 197, and 19 Id., 11, they are considered calendar eases.

In the case in 15 Mich., 156 a like opportunity was also given to the respondents to have an issue of fact made up for trial by jury,' which they had declined to accept. See an instance where such an issue of .fact was ordered to be sent down to the Circuit for trial, in 17 Mich., 159.

Where such a trial is had, doubtless a different rule as to costs wohld obtain in the case. Under the circumstances of this caso it must be considered a special motion, and thecost-s awarded on it as in cases of motion. The Act, No. 28, -of i860, page -32, provides-that •“ in all cases of special motion, such sum shall be awarded to either party as the Court in view of the circumstances shall deem- just,” which provision in its terms seems applicable here, if that act is to regulate und govern in these cases. Let the order denying' the application for mandamus with costs, he .so amended as to fix the costs awarded at $10, and the hill of costs he taxed in conformity to such order.  