Respondent brought action against appellant in the court of a justice of the peace, Kootenai county, for the sum of $109.72, and for costs. The ease was tried on the third day of December, 1902, after appellant had! filed his answer setting up a counterclaim against respondent to the amount of $161.23. The justice of the peace on the same day rendered judgment in favor of respondent and against appellant for the sum of $105 judgment and costs in the sum of $27.80; appellant appealed to the district court and the cause was tried before the court and jury on the twentieth day of March, 1903, upon the same pleadings, upon which ,the cause was tried in the justice’s court; in the district court the jury returned a verdict in favor of respondent and against appellant for the sum of $53; judgment for said sum was rendered and entered upon this verdict on the twenty-first day of March, 1903, and for the further sum of $78 costs and disbursements. On the twenty-third day of March, 1903, the respondent filed and served a memorandum of easts and disbursements amounting to the sum of $78; on the twenty-eighth day of March, 1903, appellant caused to be filed his motion and notice of motion to strike from the files and to retax the costs-set forth in respondent’s memorandum of costs and disbursements; on the twenty-fifth day of March, 1903, the motion was heard and by the court denied.
The appeal is from the judgment and order overruling mo*388tion to retax the costs and to strike from the files respondent’s memorandum of costs and disbursements.
The same question presented is, Did the lower court err in overruling appellant’s motion to retax' the costs and disbursements and in sustaining the judgment in favor of respondent for the costs incurred in the justice’s court as well as in the district court? It is earnestly insisted by counsel for appellant that this was error, that under the provisions of sections 4901 and 4904 of our statutes respondent is not entitled to his costs on appeal when he obtained judgment for a less sum than $100.
Section 4901 follows: “Costs are allowed of course to the plaintiff upon a judgment in his favor in the following cases:
' “Subsec. 3. In an action for the recovery of money or damages, when plaintiff recovers one hundred dollars or over.”
Section 4904 says: “In other actions than those mentioned in section 4901, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court, but no costs can be allowed in an action for the recovery of money or damages, when the plaintiff recovers less than one hundred dollars.”
It is said by counsel for appellant that “Although this case was originally brought before a justice of the peace, it was finally disposed of in the district court and was tried in said court de novo. The cause comes to the supreme court on appeal as an original case in the district court.”
In support of this position he cites Chase v. Hagood, 3 Idaho, 682, 34 Pac. 811; also Swinehart v. Pocatello M. & P. Co., 8 Idaho, 710, 70 Pac. 1054. Both of these cases hold that on appeal from the probate or justice’s court to the district court the trial in the latter court is de novo.
■ This is unquestionably the rule in this state, but it does not necessarily follow that the same rule applies to costs incurred in the lower court as well as in the district court, or that they should follow the law governing costs in the district court; nor do we understand that these cases so hold.
Richards v. Scott, 7 Idaho, 726, 65 Pac. 433, is also cited by appellant. The third clause of the syllabus says: “Under the *389provisions of-sections 4901-4904, Devised Statutes, where the plaintiff sues for damages and recovers less than one hundred dollars, he cannot recover his costs.” This was an original action in the district court and of course these sections govern.
Our statute provides for the payment of costs in probate and justice’s courts and is without limit as to amount. Section 4776 is as follows: “The prevailing party in probate and justices’ courts is entitled to costs of the action and also of any proceedings taken by him in aid of an execution, issued upon any judgment recovered therein.” Then we have section 4842, which provides for appeal from probate and justices’ courts and the undertaking that must be given. It says, among other things, that “An appeal from justice’s or probate court is not effectual for any purpose unless an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs when the judgment is for the payment of money.”
Construing these two sections together, it is clear that the legislature intended to provide protection for parties who were forced into the courts of limited jurisdiction to secure their rights. It even follows them into the appellate courts with protection by requiring good and sufficient undertakings for the payment of costs on appeal, and if stay of proceedings be claimed, then the undertaking must be in a sum equal to twice the amount’of the judgment, including costs.
We are not informed on what theory the defendant in justice’s court appealed to the district court, excepting as it is shown by his answer. It is sufficient to say that he was dissatisfied with the judgment and hoped to better his condition in the district court; he succeeded in reducing the judgment from $105 to $53, and to that extent did better his condition, but can it be said that because he reduced the judgment almost one-half, that he is the prevailing party as contemplated by our statutes? Should the plaintiff pay any of the costs when he goes into the court that the statute provides for him and says if he prevails he shall have his costs?
*390It must be borne in mind that there was a dispute, as shown by the pleadings in this action, of about $270, plaintiff demanding judgment for $109 and defendant for $161. It was not the fault of the respondent that any costs were incurred in the 'district court; he was required to follow his case there by the appeal of the defendant, and as we construe the statute, so long as he. succeeds in convincing a court or jury that the defendant is and was indebted to him at the time he commenced his action in justice’s court, he is the prevailing party and entitled to all his costs. (Burt v. Ambrose, 11 Or. 26, 4 Pac. 465; Moore v. Thompson, 34 Me. 207; Hartwell v. Harris, 36 N. H. 430; Davis v. Clark, 39 N. H. 62.)
When the legislature provided that the prevailing party in justice’s and probate courts, with limited jurisdiction in civil actions, should have their costs, and in district court, to entitle •a recovery for costs, the judgment for plaintiff must be on $100 or more, it was evidently the intention to confine cases of the character of the one at bar to the lower courts and not to burden the district courts with this character of litigation. If a party sees fit to commence his action in the district court he may do so, but he must recover $100 or more or pay the costs. We think this a wise provision and can see nothing but •beneficent results from it.
We find no error in the overruling of the motion for a new trial.
The judgment of the lower court is affirmed with costs to respondent.
Ailshie, J., concurs.