The sole question presented is as to which party is entitled to costs.
The action was brought by plaintiff against defendant in a justice’s court. The plaintiff asked a judgment for rent, and the defendant set up a counter-claim for work and labor. The defendant obtained judgment against the plaintiff for fifty dollars, besides costs. The plaintiff appealed, claiming a judgment in his favor of fifty dollars. The case was tried in the county court of Orange county, by a jury, and a verdict rendered of no cause of action. The county judge has, by order, given costs to the plaintiff, and the defendant appeals. The question of costs is to be determined without regard to any question of offer made or omitted to be made.
The case, undisputedly, is one where the defendant was bound to make no offer.
The defendant was the prevailing party, and is entitled to costs by reason, thereof, unless he falls within an exception or limitation created under section 371 of the Code.
The learned county judge says the judgment was wholly reversed. I do not think it was. The justice’s judgment established two things: 1st. That plaintiff had no claim against the defendant; and, 2d. That the defendant had a claim of fifty dollars against the plaintiff. The plaintiff appeals and claims what he claimed before the justice, namely, a judgment in his favor against the defendant, of fifty dollars or over. ‘
The new trial in the county court established two things: *5271st. That the plaintiff had no claim against the defendant; and, 2d. That defendant had none against the plaintiff. It was not an entire reversal of the justice’s judgment; that part of it which destroyed the plaintiff’s claim was upheld. If the justice’s judgment had been simply for the defendant, destroying the plaintiff’s claim, and the plaintiff had appealed, there would be no question as to defendant’s right to costs. When the defendant’s rights are not affected by the question of offer, I cannot see how he ceases to be the prevailing party. He has not prevailed, it is true, to establish his own claim, but he has prevailed to destroy the plaintiff’s claim, and, therefore, his judgment before the justice was not reversed.
Order reversed, with ten dollars costs.