Porter v. McBride , 44 Iowa 479 ( 1876 )

Day, J.

i judgment: may11 correct: practice. A considerable portion of the record is taken up by a presentation of the various rulings of the court respect-of exceptions presented by the plain-^ff. But, as the plaintiff does not appeal, and the P)j]]s 0f exceptions are altogether unnecessary to a consideration of the defendant’s appeal, these questions are all entirely out of the case. The sole question involved is one of costs. The lion, judge Bagg, when he overruled the motion for a new trial, directed the clerk to enter judgment upon the verdict, but did not direct him what judgment to enter. The abstract shows that the clerk entered judgment upon the verdict, but does not state what judgment he entered. This judgment was entered by the clerk in vacation. Until finally approved by the court, it was under the control of the court, and subject to modification or correction. The court could at any time before final approval of the judgment make it such as should be entered pursuant to the verdict. It is to be observed that the plaintiff claimed $75,000 damages, and the defendant in his cross-petition claimed 15,000 damages. It is quite probable that the defendant, in efforts to make out his claim for damages, made costs which had no connection with his mere defense against the claim made by plaintiff, The jury found simply for the defendant, and found no damages. The only reasonable inference is, that they found against each party on his claim for damages. Section 2933 of the Code provides that, “ Where the party is successful as to a part of his demand, and fails as to part, unless the case is otherwise provided for, the court may, on rendering judgment, make an equitable apportionment of costs.” And the next section provides that, “Where there are several causes of action embraced in the same petition, or several issues, the plaintiff shall recover costs upon the issues determined in his favor, and the defendant shall recover costs upon the issues determined in his favor.” Here.there were two issues. One was determined in favor of plaintiff; the other in favor of defendant. It is proper that the plaintiff should pay the costs accrued upon his petition, and that the defendant should pay the costs accrued upon his cross-petition. The abstract does not set out the judgment entered by the court,' but simply states that the court ordered judgment to be rendered in favor of plaintiff, and against defendant, on the cross-demand.

No amount was found against defendant, and the judgment must have been simply for costs. And, as we are not to presume error, we must, in the present state of the record, conclude that the judgment against defendant was simply for the costs made upon the trial of his cross-petition. Such a judgment the verdict warranted and required. We are now satisfied that the record discloses no error.

Affirmed.