Reed v. Corrigan , 114 Iowa 638 ( 1901 )

Given, C. J.

2 3 I. Appellant’s first contention is that the court erred in rendering judgment in any amount against, him. There is no question but that defendant did receive from plaintiff $265 about the time alleged, and the question is whether it was as a loan, o-r on account of the alleged agreement. The only witnesses examined were the parties and T., J. Smith, and their tesimony is in conflict as to whether there was an agreement as alleged. The determination of the issue depends upon the weight and credit to be given to the witnesses, and of this the trial judge had better opportunity of judging than we have. Giving to his judgment the force and effect of a verdict, we cannot say that he erred in rendering judgment for the plaintiff. Appellant’s further contention is that the court erred in rendering judgment against him for costs, for the reason that plaintiff does not ask to recover costs in his petiton. Appellant cites Johnson v. Mantz, 69 Iowa, 710, holding that relief not asked cannot be granted, and Searle v. Fairbanks, Morse & Co., 80 Iowa, 307, that judgment for costs on a prayer for general relief in equity was proper. Section 3853 of the Code provides “that costs shall be recovered by the successful against the losing party.” Costs are no part of the cause of action, but incident to the action, and may be recovered without demand therefor.

4 II. Appellant moved, to set aside the judgment and for a new trial on the ground' of newly-discovered evidence, which motion was overruled, and of this he complains. Three affidavits were filed in support of this motion, and are to the effect- that plaintiff said he had purchased a half interest- in defendant’s business, and that he was in partnership with him. Defendant’s allegation is that upon full payment of the $800 “on or before January 1, 1899, he was to become a full partner with the defendant,” and that he “has only paid a small portion thereof.” The newly-discovered evidence was immaterial under this allegation. For this and other reasons there was no error in overruling defendant’s motion to vacate the judgment and for a new trial. — Aeeirmed.