The 79th rule, referred to, reads as follows : “ In addition to costs and expenses regulated by law, costs shall be allowed to the prevailing party upon final judgment, by way of indemnity for his expenses in the action, as follows: In an action where judgment, upon failure to answer or prosecute the action, is had, ten dollars; for the trial of the issues of fact and of law, fifteen dollars.” This rule was adopted under the authority, conferred by Chapter 250 of the Laws of 1857, and was submitted to and approved by the judges of this court.
We are not disposed, except m a clear case, to interfere with the action of the District Court, in giving or refusing costs, under rules established by virtue of the statute cited. Until repealed or changed, however, they have the force and effect of law, as applied to the rights of parties, and in their construction the sime rules should be applied. The rule in question provides that the prevailing party, shall be entitled to ten dollars, where judgment is had for failure to prosecute the ’ action. Treating this language as entitled to the same force, as if found in an act of the General Assembly, we think there is no room for doubt. By the very language of the rule, the defendant was as much entitled to the ten dollars, as to any other costs provided for by the general law. The final judgment, in the rule provided for, we understand to mean, that which is final or disposes of the case then pending, and not necessarily that which disposes finally of the controversy, or cause of action between the parties, so that no other action can be brought. Thus construing the language of the rule, we can see no good reason why appellant was not entitled to the costs claimed.
Judgment reversed.