The opinion of the Court, Shepley, C. J., Tenney, Rice and Appleton, J. J., was drawn up by
Rice, J.This action was commenced in the District Court, where a trial was had and a verdict obtained by the plaintiff for $17,07. From this verdict the plaintiff appealed to this Court, in which, on trial, he obtained a verdict for $58,96, damages. On rendition of judgment, the plaintiff claimed full costs in the District Court, which was resisted by defendant. The presiding Judge ruled, that the plaintiff was by law entitled to tax and recover full costs in the District Court before his appeal. To that ruling the defendant excepts.
Section 13 of chap. 151, R. S., provides, “If in any action originally brought before the Supreme Judicial Court or any District Court, it shall appear, on the rendition of judgment, that the action should have been originally brought before a justice of the peace or the judge of any municipal or police court, the plaintiff shall not be entitled to recover for costs more than one quarter of the amount of the debt or damage so recovered.”
It is contended by the defendant, that it is the judgment of the District Court which should determine whether the action was originally brought before the proper tribunal, at least so far as the costs in that Court are involved. Parties may properly litigate their rights to the highest tribunal open to them by law, and those rights cannot with propriety be said to ajipear or be determined, until settled by the judgment of a Court of last resort, or until the parties have submitted to the judgment of an inferior tribunal. This action *208was appealable from the District Court to the Supreme Judicial Court. It was only when judgment was obtained in the latter Court, which is presumed to be less liable to error than those of a subordinate character, that it did incontestably appeal- before what tribunal the action should have been originally commenced.
Ruggles, for the defendant. May, for the plaintiff.We think the adjudication was correct. The exceptions are therefore overruled, and judgment affirmed.