
    JARRAIT v. PETERS.
    Costs — On Error — Statute—Construction —Order of Court.
    Though section 11271, 3 Comp. Laws, leaves the costs in the discretion of the court in cases where a new trial is ordered, it is not to be assumed from the fact that no mention of costs is made in the opinion that no action as to costs was taken by the court in reversing a case, since by general direction to the clerk the journal entry always includes an award of costs in case of reversal or affirmance, unless direction to the contrary appears in the opinion.
    Case by George H. Jarrait against Louis M. Peters for damages for refusal to give possession under a lease: On motion to vacate the taxation of costs.
    Submitted January 7, 1908.
    (Calendar No. 21, 348.)
    Denied January 31, 1908.
    
      Van Zile & Brownson, for the motion.
    
      Thomas Hislop, contra.
   Per Curiam.

In this case a judgment for the plaintiff was reversed and a new trial ordered. Jarrait v. Peters, 145 Mich. 29. The costs were regularly taxed by the clerk of the court, amounting in all to the sum of $180.24. It appears that the case was afterwards retried in the circuit court for the county of Wayne, and a judgment recovered in favor of the plaintiff in-the sum of $300, with costs. No steps have been taken to reverse this judgment.

Motion is now made to vacate the taxation of costs based on section 11271, 3 Comp. Laws, the contention being that inasmuch as in the opinion of the court the statement is simply, “Judgment is reversed, and anew trial granted,” it is to be assumed that no action as to costs was taken by this court.

Counsel has mistaken the practice. While section 11371, 3 Comp. Laws, leaves the costs within the discretion of the court in a case where a new trial is ordered, by general direction to the clerk the journal entry always includes an award of costs in case of reversal or affirmance, unless direction to the contrary be given in the opinion. In the present case the journal entry shows that costs were awarded to the defendant on reversal of the judgment.

The motion is denied.  