
    Nelson v. Turner.
    Action hy A. against B., in the Circuit Court, for an assault and battery. A. had not, before the commencement of the action, given notice to B. to appear before the Court of Conciliation. Judgment for A. for damages, but against him for costs. Held, that the judgment for costs was wrong.
    
      Tuesday, November 27.
    APPEAL from the Boone Circuit Court.
   Gookins, J.

The only question arising in this record is in regard to costs.

The case was trespass by Nelson against Turner, for an assault and battery, in which the plaintiff recovered a judgment for 105 dollars in damages, and the defendant had judgment against the plaintiff for costs.

We have the following statutory provisions upon the subject:

By the 2 E. S. 1852, p. 126, s. 396, the successful party recovers costs, unless prevented by some exception of the statute.

The third section of the act organizing Courts of Conciliation, (ibid., p. 224,) requires the plaintiff, before commencing an action fox libel, slander, malicious prosecution, assault and battery, or false imprisonment, to serve the defendant with a notice to appear before that Court, with a view to an amicable settlement. The 10th section provides, that (except in those cases in which the defendant is arrested) the plaintiff shall not recover costs against the defendant, unless he shall produce at the trial a certificate from the judge of the Court of Conciliation, showing that he had duly notified the defendant, and that he had himself appeared at the appointed time. It further provides that the defendant can not recover costs against the plaintiff, if, on being notified, he fails to appear, &c.

In this case no notice was given.

The expenses which the parties incur during the progress of a cause, for the services of officers and the attendance of witnesses, are properly called fees. They are due as soon as the services are rendered, and if not paid, may be collected from the party requiring the services. When judgment is given, the successful party ordinarily recovers these fees from the other, under the denomination of costs. But to induce amicable settlements of controversies of this ldnd, the Court of Conciliation is established, and it is provided that although he may be successful in his action, the plaintiff shall not recover his costs, unless he has called his adversary before that tribunal; but the statute does not provide that in such case the defendant shall recover his costs against the plaintiff. If the defendant succeed in the action, he recovers his costs, if he has not been notified, or if, being notified, he has answered to the notice. Here the defendant was not notified, but the judgment was against him; consequently no judgment for costs should have been given, but each should have been left to pay his own fees.

C. C. Nave, for the appellant.

Per Curiam.

The judgment for costs is reversed, at the costs of the appellee, to be certified, &c.  