Brinck v. Neiweg ( 1870 )

Wright', J.

Aside from the affidavits of certain jurors, to the effect that they regarded defendant’s set-off strongly equitable, that they yielded to the verdict for five cents as a compromise to end the litigation, and that it would be equitable to require each party to pay his own costs, we know nothiiig of the equitable circumstances apparent to the court below, and upon which it was the duty of that court, as of this, to act. We are not advised as to amount of costs, either in the aggregate, or as made by the respective parties. It is very evident that plaintiff either failed as to a large part of his demand, or that defendant recovered for a great proportion of liis set-off In this state of the record, we would not be warranted in interfering with the order as to costs. The ease is, in principle, covered by Arthur v. Funk, 22 Iowa, 238. As far as we can see, it is one of those cases where the court was justified in making an “equitable apportionment of costs.” Rev. § 3449. Or if not this, then one where defendant was entitled to recover “ costs upon the issues determined in his favor.” § 3451. There is nothing to satisfy us that the court below did not follow the statute.

The cases cited by appellant’s counsel are not applicable to this.

Affirmed.