ON REHEARING.
The appellant urges in a petition for rehearing that the costs should be taxed against respondent and not against appellant. It is true that the plaintiff and respondent has been denied the affirmative equitable relief which it sought. But it is also true that the defendant and appellant has been defeated on every point which it urged either against the plaintiff’s right or as ground for affirmative relief.
The pivotal question in controversy in this law suit was as to the validity of the transaction involved. The defendant’s denial of its validity is the cause of this law suit, and it was in the *604trial of that question that practically all the expenses of this litigation were incurred. In view of that fact it is no more than just that the defeated party should pay the taxable costs. Although the plaintiff misconceived its remedy, the defendant did not question the propriety of the remedy; and with respect to the question of substantial right actually litigated, the defendant and respondent is the defeated party.
(109 N. W. 61.)In such a case as this the awarding of costs is left to the discretion of the court. Rev. Codes 1899, sections 5580, 5581; Rev. Codes 1905, sections 7179, 7180. If any item of costs provided for by Rev. Codes 1905, section 7176, is included in the costs as taxed in the court below, such item should be stricken out.
The petition for rehearing is denied.