Decided March 17, 1908.
On Eehearing as to Costs.
[94 Pac. 503.]
Opinion by
Mr. Commissioner Slater.5. Plaintiff and respondent presents his petition for a rehearing as to costs on the appeal. Nothing was said in the opinion as to who should be allowed costs; and, it appearing that the decree of the lower court had been modified in a material respect, the prevailing party was awarded costs in the decree in accordance with the general rule. But it is now contended by respondent that the modification of the decree was not material and of no advantage to the appellant, inasmuch as the judgment of the justice court, which was allowed to stand of record, became outlawed on April 24, 1906, and was thereafter of no value to appellants. This respondent seeks to establish ex parte, and not by the record, by showing that no legal execution had been issued thereon within the statutory period, and hence it is conclusively presumed *187to have been paid. This, however, cannot be considered. It does, however, appear from the record that the chief remedy sought by plaintiff was to prevent the consummation of a sale of his real estate through the instrumentality of this judgment, and he was accorded that much by the decree both of the lower court and of this court.
It is therefore considered equitable that neither party should be allowed to recover costs here.
Modified as to Costs.