In an application for rehearing filed in this matter counsel for defendant, Johnston, seeks a modification of our decree with respect to the assessment of costs.
Our decree affirmed the judgment of the lower court insofar as it ran in favor of
Mrs. Weitkam at defendant's cost and reversed the judgment in favor of Mr. Weitkam at his cost.
Counsel points out in his application that the suit filed below was a joint action on the part of plaintiffs, Mr. and Mrs. Weitkam, and that the amount of costs incurred by plaintiffs in that court would have been the same had the suit been filed by Mr. Weitkam alone. As a consequence, he contends that in a sense no costs were actually incurred by Mrs. Weitkam in the lower court, therefore, defendant should not be cast for any costs other than those incurred by Mrs. Weitkam, if any, in connection with this appeal.
Counsel also contends that, as defendant was successful in having reversed the judgment obtained against him by Weitkam, he should have judgment against Weitkam for the costs incurred by him in both courts.
We do not believe it would be equitable to grant the relief which counsel requests. Approaching the situation from the viewpoint of Mr. Weitkam, we observe that the same costs incurred in this suit would have been expended if the action had been filed by Mrs. Weitkam alone. Bearing this in mind, Weitkam might also, with equal force, contend that since Mrs. Weitkam was successful in her demand against defendant, the latter should pay all costs.
Should we grant the relief requested by counsel, the effect would be to relieve defendant of all liability for costs even though he was unsuccessful in defense of the action brought by Mrs. Weitkam.
However, we have concluded to modify our decree on the question of costs because of the peculiar situation obtaining, and to order the plaintiff Weitkam and the defendant Johnston to share equally the costs in both courts and our former decree is accordingly amended so as to so provide.
The rehearing applied for is refused.
Decree amended.
Rehearing refused. *Page 55