Dissenting. — I am unable to concur in ,the conclusion reached by my associates. Section 4776, Revised Statutes, provides that the prevailing party in probate and justice’s courts is entitled to costs of the action, and applies only to trials in those courts, and does not control on an appeal from either of said courts to the district court. Title 14, chapter 6 of the Revised Statutes of 1887, is entitled “Of costs,” and section 4906 of said chapter is as follows: “In the following cases the costs of appeal are in the discretion of the *391court: 1. When a new trial is ordered; 2. When a judgment is modified. In all other cases the prevailing party shall recover costs, including his costs below when the appeal is to the district court.”
The provisions of said section apply to all appeals from the probate and justice’s courts. That being true in the case at bar, the judgment of the lower court was reduced or modified from $105 to $53; in that case the defendant prevailed in his appeal in part at least, by having the judgment reduced $52. Under the provisions of subdivision 2 of the last-quoted section, the judgment was modified and in such case the costs are in the discretion of the court. As I take it, the legislative intent was to leave the apportionment or taxation of costs to the appellate court in cases where the appellant succeeds in procuring a modification of the judgment of the court below.
The prevailing party was entitled to his costs in the lower court, and the taxation of costs on appeal is left to the legal discretion of the appellate court by the provisions of said section 4906.
The New Hampshire cases cited in the majority opinion are not in point, for the reason that the statutes under which they arise are not like our own. The same is true of Burt v. Ambrose, 11 Or. 26, 4 Pac. 465, in which the New Hampshire cases are cited with approval. In Nurse v. Justus, 6 Or. 75, which was an appeal from a justice’s court and in which the plaintiff recovered identically the same judgment on appeal that he did in the lower court, the court said: “Had the judgment been modified, the allowance of costs would have been a matter of discretion, but as the case now stands, we think the judgment in favor of Justus for costs and disbursements was error.”
The case of Sugar Pine D. & L. Co. v. Garrett, 28 Or. 168, 42 Pac. 129, was a case appealed from a judgment of a justice of the peace. The judgment was in favor of the plaintiff for $224.20, and defendant appealed to the circuit court, where judgment was rendered in favor of plaintiff for $179.90, from which defendant appealed to the supreme court. In that ease the court allowed the plaintiff judgment for his costs on appeal to the circuit court and that was assigned as error. The supreme court in disposing of that question said: “Nor was. there *392any error in allowing, plaintiff judgment for costs.....When a judgment is modified on appeal to the circuit court, the-question of costs is in the sound discretion of the court, and its discretion will only be disturbed here in case of the abuse of such discretion.” The rule laid down there is the one I am contending for in the case at bar. The judgment in that case had been modified, but the court in its sound discretion held that the plaintiff was entitled to judgment for his costs on appeal to the circuit court. In the case at bar the judgment had been modified and under the provisions of subsection 2 of said section 4906 the allowance of costs was in the sound discretion of the court.
But the rule laid down by the majority of this court holds that the plaintiff was entitled to recover costs on appeal as a matter of right, although the judgment he recovered in the justice’s court was reduced $52 by the district court.
It appears to me that said rule is most unjust; for example, if a plaintiff should appeal from a judgment in his own favor and only obtain a judgment in the district court for a small part of the judgment given him in the justice’s court, the defendant must pay all costs of the appeal.
The reason for the statute and rule, leaving the question of costs to the sound discretion of the court when a judgment is modified, seems very clear to me.