ON REHEARING
*308Norman K. Winslow, Salem, argued the cause for appellants. Carlton B. Beiter, Portland, argued the cause for respondent. - Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Goodwin and Lusk, Justices. *309LUSK, J.Petitions for a rehearing have been filed by both sides. We granted the appellants’ (defendants’) petition, which is directed solely to our affirmance of the judgment on the third cause of action, and that part of the respondent’s (plaintiff’s) petition which asserts error in our allowance of costs on appeal to the defendants. The remainder of respondent’s petition is denied.
APPELLANTS’ PETITION FOE REHEARING
The third cause of action is in trover for a conversion of the so-called Hesketh truck and trailer which is also referred to in the testimony as the “Rause truck and trailer” and “the freighter”. On this cause of action the jury returned a verdict for the plaintiff in the amount of $7,000 general damages and $15,000 punitive damages. The verdict for punitive damages was subsequently set aside by the trial court and judgment for the plaintiff entered in the sum of $7,000.
The ground of defendants’ petition is that this Court’s affirmance of the judgment was based upon a theory not pleaded in the complaint. After alleging that on, to-wit, September 1, 1959, plaintiff was the owner and entitled to the immediate possession of the vehicles in question, and that' their reasonable market value in the county of Kootenai, Idaho, and in Yamhill county, Oregon, was $14,000, the complaint continued:
“IV.
“That on, to-wit: the 1st day of September, 1959 .the defendants and each of them wrongfully and unlawfully took said vehicle from plaintiff and con*310verted the same to defendants’ own use without the . consent, of plaintiff;
“V.
“That prior to said wrongful taking the defendants induced plaintiff to give consent to defendants for them to take possession of said truck and trailer in the following manner:
“Defendants had previously been delivered a written assignment of plaintiff’s interest in a land sale contract which plaintiff and his wife had entered into in February of 1959 with one James M. Davis and Lucille Davis, and which land sale contract pertained to land situated in a part of the Joseph Brisbine Donation Land Claim No. 51 in T2S, R3W of the Willamette Meridian; that said assignment has been made to defendants as additional collateral in security and in connection with a certain chattel mortgage transaction; that on or about the 18th day of September, 1959, defendants represented to plaintiff that if he should execute a power of attorney which would enable the defendants to obtain a transfer of title to the aforedeseribed vehicles then upon delivery of said power of attorney to them by plaintiff, and upon defendants obtaining possession of said vehicles, defendants would reassign plaintiff all of their right, title and interest in the aforementioned real estate contract held by them as collateral; that plaintiff believed aaid representations to be true and was incarcerated in the Yamhill county jail at said time and was .assured by defendants that unless such consent were given plaintiff would not be released from jail and other charges would be preferred against him; that plaintiff in reliance upon said representations and in fear of reprisals in fact executed and ■ delivered a motor vehicle title transfer power of attorney-to defendants which thus enabled them *311thereafter to take possession of said vehicles and to cause the titles to said, vehicles to he registered in defendants’ name; that at said time defendants did not intend to reassign said land sale contract to plaintiff but deceived plaintiff and coerced him and acted intentionally and maliciously; that defendants thereafter refused to reassign said land sale contract;
“VI.
“That by reason of the premises plaintiff alleges that the purported consent given defendants to take possession of the afore-described vehicles was a nullity and was fraudulently obtained;”.
We shall now refer to the evidence bearing upon the question.
The case has its genesis in the purchase by the plaintiff Gowin from the defendant Baird of three log trucks and trailers and the execution by Gowin of a chattel mortgage on this equipment to secure the purchase price. As additional security, Gowin assigned to Baird his interest in a contract of sale of a farm. The mortgage was assigned by Baird to Heider for a valuable consideration. Later Gowin acquired the Hesketh truck and trailer, and transferred the motor from one of the mortgaged trucks to the Hesketh truck and departed for Idaho, leaving behind the mortgaged vehicles, but taldng with him stakes, chains and binders and other equipment which Baird claimed to be his property. Baird swore to a crirtíinal information charging Gowin with larceny by bailee of the motor above referred to and several other items of property. Gowin was apprehended in Coeur d’Alene, Idaho, brought back to McMinnville, Oregon, and lodged in jail there on or about August 31pl951, and *312so remained until September 18, 1959, on the charge preferred by Baird, and other charges. During this time Baird met with Gowin in the jail twice, on September 1 and September 18, 1959. On both occasions the sheriff of Yamhill county, Wallace Mekkers, was present.
It is in evidence that before Gowin left for Idaho he removed the tires and wheels from the mortgaged vehicles and sold them to a concern in Portland referred to as Burns Brothers. Baird testified as an adverse witness for the plaintiff that Gowin told him that “he' would give me his equity in the Diamond T [the Hesketh truck] and trailer and farm and some fence posts and rolls of barbed wire still laying at the place, and some old peat buckets if I wouldn’t push Burns Brothers for buying this property. That was our agreement in front of the Sheriff.”
As a witness in his own behalf Baird testified that he told Gowin that Burns Brothers admitted buying the tires, but that they had already sold them and that Gowin said that “if I didn’t press the charges on Burns that he’d give me the truck and trailer and everything else up there to get away from having another charge brought against him;” that Gowin told bim to “go and get” the property and gave him a letter to Mrs. Gowin (who remained behind in Coeur d’Alene after Gowin was arrested) authorizing her to turn over to him the Hesketh truck and trailer and various articles of equipment. Baird thereupon sent his agent, Aebi, to Coeur d’Alene with the letter, and Mrs. Gowin delivered the property to Aebi who brought it back to Oregon. He left the trailer with Peerless Trailer and Truck Service in Portland and drove the *313truck to Baird’s garage in Sheridan. Baird testified that some $4,200 was owing on the purchase price of these vehicles and that he paid it off.
Gowin’s version of what took place at the first meeting was quite different from Baird’s. In answer to a question by his counsel as to what conversation he had about the Hesketh truck and trailer, he answered :
“And they wanted their motor back in the truck and he says, ‘Stakes, chains and binders —’ Mr. Baird was talking. He said they wanted their stakes, chains and binders also, and I told them they could have the stakes, chains and binders but not the truck — the motor had already been changed and the Sheriff says, ‘You better try to get along here. Try to cooperate in this matter.’ ”
Gowin’s testimony continued:
“Q Why were you going to give them the stakes, chains and binders when they were yours? Would you explain that to the jury?
“A Well, I was under some pressure there, and I needed to get out of jail.
“THE WITNESS: I needed to get out of the jail. I was under a good deal of pressure and I figured I could sacrifice some and retain the rest, but, then, in the conversation — the exact words I wouldn’t recall — still on the same subject there though, of the stakes, chains and binders, and Mr. Baird made out the lists. As I called off by memory what parts was — including my parts; my fuel oil and so forth — grease—and he says, ‘I’ll need a letter of signature, and I said, ‘No.’ and the Sheriff says, ‘Never mind, it’s going to be picked up by Avarrant anyway.’ ”
*314Although .Gowin testified that “I told them they could have the stakes, chains and hinders but not the truck,” nevertheless, it is shown without contradiction that he did sign the letter authorizing his wife to deliver the Hesketh truck and trailer to Baird.
At another point in his testimony, with reference to the September first meeting, Gowin testified: “I told him if he wanted the stuff back he could have it, but he’d have to go get it. He said, ‘Don’t worry about that, I have the truck repossessed in Idaho.’ ” He explained that by “the stuff” he meant the stakes, chains and binders.
Begarding the meeting between Baird and Gowin on September eighteenth, the latter testified that Baird said:
“ ‘We have the truck. The truck has been back since around the 4th — ’ somewhere in there — in that neighborhood, and that he had possession and that I'still was under the impression that it had been picked up on a warrant, and, due to the release of the plates — a promissory release of the plates to get out — the Sheriff was putting a little pressure here and there.”
He further' testified that on that occasion Baird induced . him, by a fraudulent promise, to sign blank powers of attorney covering the mortgaged vehicles and the Hesketh truck and trailer so that Baird would be ablé to have the titles to these vehicles transferred into his name. The promise was that if Gowin would sign the powers of attorney Baird would reassign to him the contract of sale of Gowin’s farm. Baird denied this testimony, but, as counsel for the defendants freely admits, the issue of fraud was for the jury.
*315On this evidence we held as f ollows:
“It is our opinion that the conversion, if there was one, occurred when Baird’s agent took possession of the Hesketh truck and trailer. As we have indicated in the part of this opinion dealing with the cause of action for malicious prosecution, there was evidence sufficient to go to the jury on the question whether Gowin’s consent to Baird taldng the property in Idaho was the product of duress. If so, the defendants’ subsequent alleged fraud in obtaining the powers of attorney from Gowin on September eighteenth becomes relatively unimportant to the issues involved in this cause of action. • * *” 386 P2d at 18.
While we are still of the opinion that the evidence is sufficient to support a finding that Baird secured the letter of authority from Gowin and the possession of the vehicles by duress we are, nevertheless, convinced, after reargument and re-examination of the question, that the judgment cannot be sustained on that basis, for that is not the wrongful act alleged in the complaint. The complaint alleges a conversion that occurred at a later date and by other means, namely, the fraudulent promise to reassign the land sale contract to Gowin, coupled with a charge of duress, by all of which Gowin was induced to sign the power of attorney. We attach no importance to the date as such, as, generally speaking, the date is not so material but that a conversion may be proved to have been on a different date than that alleged. Aldrich v. Higgins, 77 Conn 370, 59 A 498. Here, the complaint alleged two dates, September 1 and September 18, but the plaintiff chose to state the circumstances of the conversion, and the means by which it was accomplished, on September 18. He could not recover by proof of a *316conversion at an earlier date accomplished by entirely different means.
The complaint alleges that “prior to said wrongful taking” the plaintiff was induced by the false promise to “execute a power of attorney which would enable the defendants to obtain a transfer of title” to the vehicles, and that the promise would be carried out “upon delivery of said power of attorney” to defendants and “upon defendants obtaining possession of said vehicles,” and that the plaintiff, relying upon the promise and in fear of reprisals, executed a motor vehicle title transfer power of attorney to defendants, which “thus enabled them thereafter to take possession of said vehicles and to cause the titles to said vehicles to be registered in defendants’ name.”
The evidence is that more than two weeks before this Baird had gotten possession of the vehicles, not through the false promise and duress alleged in the complaint, but by securing Gowin’s signature to a letter of authority addressed to Mrs. Gowin. The evidence that this letter and possession of the truck and trailer through it were obtained by duress is what caused us to hold in our former opinion that it was at that time, if at all, that the conversion took place.
As an answer to this position counsel for the plaintiff on the oral argument on rehearing urged the following: Aebi was a dual agent. He was agent for Baird to bring back the stakes, chains, and binders and for Gowin to bring back the truck. The conversion was accomplished through a series of steps, and conversion of a motor vehicle is not complete until the wrongdoer obtains a certificate of title so that the title may be transferred through the State Department of Motor Vehicles. The first step was the obtaining *317by Aebi for Gowin of custody of the truck. At that time Baird had no intention of keeping the truck and the conversion was completed when the power of attorney was fraudulently obtained. Counsel stated that “the letter was given voluntarily, but the truck was not given to the defendants at that point.”
The argument is a complete about-face on the part of counsel for the plaintiff, who contended in his brief on the original submission that the defendants “extorted” the letter from Gowin to Mrs. Gowin by telling him “he would stay in jail until they ‘got the stuff back’ ”, and that the conversion was completed when Aebi obtained possession of the vehicles in Idaho and brought them back to Oregon. More importantly, there is no room in the evidence for the claim that in doing so Aebi acted as agent for Gowin. The sole question was whether Gowin gave the letter freely and voluntarily or as the result of duress. If it was the latter, there was a conversion. As previously stated, this was not the conversion pleaded by the plaintiff. Neither was it the issue submitted to the jury in the court’s instructions, which dealt only with the defendants’ alleged fraud and duress in obtaining the power of attorney on September eighteenth.
Nevertheless, we think that the evidence justified the instructions and supports the judgment.
There was no evidence that, as the plaintiff alleged, the power of attorney obtained by the defendants through the asserted fraud enabled them to take possession of the vehicles or to secure registration of them in their own names, but that does not end the inquiry. The question is, does the conduct of the defendants alleged and proven constitute such an exercise of do*318minion over ¡ the property, in exclusion of' the plaintiff’s right, as to amount to a conversion.
It is not necessary to a conversion that there should be a manual taking of the chattel by the defendant, or that it should be shown that he has applied it to his own use; a withholding of possession under a claim of title inconsistent with the title of the owner is sufficient, 2 Cooley on Torts (4th ed) 499-500, § 331; 89 CJS 533-534, Trover and Conversion, § 3. Dean Prosser .says that “a mere assertion of ownership, without any disturbance of possession, or any other interference with the right to it, is not sufficiently serious to be classed as a conversion,” but “[a] claim of title, by one who is in possession, which reasonably implies, that the owner 'will not be permitted to obtain the goods, will be enough.” Prosser on Torts (2d ed) 77. Supporting the text are Baker v. Beers, 64 NH 102, 6 A 35; Adams v. Mizell, 11 Ga 106; Oakley v. Lyster, 1 BIB 148 (1931). In the case last cited, the defendant had not even taken possession of the property, described as “hard core and tar macadam,” which belonged to the plaintiff and had been deposited by bim on land which he rented for that purpose. The land was later purchased by the defendant who never went into possession. Nevertheless, a letter written by the defendant’s solicitor to the plaintiff warning the latter that if he attempted to remove “the stuff” he would become a trespasser was found by the court to be sufficient evidence of a conversion.
We have no difficulty in holding that one who, for the purpose of getting the title to a motor vehicle registered in his own name, obtains from the true owner by fraud or duress a power of attorney which would enable him to accomplish that purpose, is guilty *319of an unlawful interference with, the true owner’s dominion over the property, where, as here, the wrongdoer is in possession of the property. That the power of attorney proved to he insufficient for its intended purpose, as the evidence indicates, is not material. Neither is it material that the possession of the defendants was unlawful. See 89 CJS 547, Trover and Conversion § 37, where it is said:
“Regardless of whether he came into possession of the property lawfully or unlawfully, a person in possession of the personal property of another is guilty of conversion where he makes an unfounded claim or assertion of ownership or title thereto, or treats or deals with the property as owner.
Thus, the evidence was sufficient to show a distinct act of dominion wrongfully exerted by the defendants over plaintiff’s property on September eighteenth, and a conversion, as alleged in the complaint. In the circumstance's of this case, the plaintiff had his election to make either the original conversion or the later one the basis of an action in trover.
In the particulars hereinabove indicated, our former opinion is modified, but the decision affirming the judgment on the third cause of action is adhered to.
RESPONDENT’S PETITION FOR REHEARING
On this appeal the court has reversed the judgment for the respondent on one cause of action and affirmed the judgments on the other two. Both the appellants and the respondent filed cost bills. On objections of each party to the other’s cost bill, we sustained the appellants’ objections, but have granted a-rehearing *320because the problem involved is a recurring one and our decisions regarding it are not uniform.
Upon the argument neither side claimed the right to recover all its costs. Counsel for the respondent suggested that a division of one-third to the appellants and two thirds to the respondent would be fair, just as though there had been three separate lawsuits. Counsel for appellants thought that there should be an apportionment of the expense of preparing the transcript of testimony and of printing the briefs based upon an allocation of the portions of the testimony and the briefs properly referable to each cause of action. He admitted that this would be a difficult task. In a case like this where much of the testimony related to all three causes of action, we think it would be a Herculean one.
Both counsel assumed, not without justification in our decisions, that this court has discretion in the matter. Whether it has or not is, we think, the primary question.
The first statute relating to costs was passed in 1862, Deady’s Civil Code, ch 6, Title V. Section 542 (General Laws of Oregon 1845-1864, pages 287-288) provided:
“Costs, when allowed to either party, are as follows:
“1. In the supreme court, on an appeal, to the prevailing party, fifteen dollars;
“2. In the circuit court, to the prevailing party, when judgment is given without trial of an issue of law or fact, or upon an appeal, five dollars; when judgment is given after trial of an issue of law or fact, ten dollars;
“3. In the county court, one-half the amount allowed in the circuit court.
*321“But when on an appeal to the supreme or circuit court a new trial is ordered, or a decision given modifying the judgment appealed from, the costs on appeal shall be allowed or not, in the discretion of the appellate court.”
Section 543 (now OES 20.020) provided:
“A party entitled to costs shall also be allowed for all necessary disbursements, including the fees of officers and witnesses, the necessary expenses of taking depositions by commission or otherwise, the expense of publication of the summons or notices, and the postage where the same are served by mail, the compensation of referees, and the necessary expense of copying any public record, book or document used as evidence on the trial.”1
In a suit in equity, however, costs were allowed to the prevailing party “unless the court otherwise directs.” Beady, section 544, now OES 20.030.
The statute regarding costs on appeal in a law action remained unchanged until 1907, when the provision that when “a new trial is ordered, or a decision given modifying the judgment appealed from, the costs on appeal shall be allowed or not, in the discretion of the appellate court”, was dropped, General Latvs of Oregon 1907, ch 181, § 2; and ever since then the law of this state has provided that in the Supreme Court costs shall be allowed to the prevailing party. See OES 20.070 (1).
Turning now to our decisions we find that in the earlier cases after 1907 the court applied the statute as it Avas written, that is, costs were allowed to the prevailing party, Gardner v. Kinney, 60 Or 292, 296, 117 P 971 (1911); Lemler v. Bord, 80 Or 224, 230, 156 *322P 427, 1034 (1916) ; Propst v. William Hanley Co., 94 Or 397, 404, 185 P 766 (1919). In Gardner v. Kinney, the plaintiff was ordered to remit $285 of a judgment for $1,171 or suffer a reversal and the defendant was awarded costs, the court saying, per McBride, J.: “As defendant has been put to the trouble and expense of an appeal, he will recover his costs in. this court in any event.” There was a similar ruling in Lemler v. Bord, where there was a judgment for the plaintiff for $270.60 on a first cause of action and a judgment for $10 on a second cause of action. The former judgment was affirmed, the latter set aside, and it was held that defendant was entitled to costs as the prevailing party. So, also, in Propst v. William Hanley Co., when a judgment for the plaintiff for $1,631 was reduced on appeal to $148.33.
The first mention of Article VII, § 3, of the Constitution in this connection was made in Lemler v. Bord. That section provides, in part, that “if, in any respect, the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court.” Respecting this provision the court said:
“It must be remembered, however, that it is a judgment and not a decree which is to be entered under that clause. The incidents of the former will therefore follow, and the question must be settled on the basis of a judgment as distinguished from a decree.” 80 Or at 231-232.
The court then referred to section 565, L.O.L., providing that costs in the supreme court on an appeal *323are allowed to the prevailing party and said that wherever costs are allowed at law, “they follow as a matter of course one way or the other.”
In 1918 the court first announced that Article VII, § 3, of the Constitution conferred upon it a discretionary power to determine a question of costs. This was in the case of Stabler v. Melvin, 89 Or 226, 173 P 896 (1918) in which, pursuant to the constitutional amendment, a judgment for fraud was reduced from $1,411 to $750 and it was held that neither party was entitled to costs. The court said:
“It is our opinion that the power given to this court, under this section, to enter a judgment upon the record carries with it the power to award costs on equitable principles, and to give or to deny costs to either party on appeal.” 89 Or at 232.
Other cases invoking the asserted power are: Olson v. Heisen, 90 Or 176, 175 P 859 (1918); Miller Lum. Co. v. Davis, 94 Or 507, 185 P 462, 1107 (1919); Levine v. Levine, 95 Or 94, 187 P 609 (1920); Obermeier v. Mortgage Co. Holland-America, 123 Or 469, 259 P 1064, 260 P 1099, 262 P 261 (1927); Wood et al v. Sprague et al, 165 Or 122, 106 P2d 287 (1940).
McKinney v. Nayberger et al, 138 Or 203, 220, 295 P 474, 2 P2d 1111, 6 P2d 228, 229 (1931), Patterson v. Horsefly Irrigation Dist., 157 Or 1, 69 P2d 282, 70 P2d 36 (1937); and State v. Cummings, 205 Or 500, 534, 288 P2d 1036, 289 P2d 1083 (1955), mark a departure from the decisions just referred to. Recognizing that the statute regarding costs is controlling, they hold that on affirmance or outright reversal of a judgment, the party in whose favor the decision is rendered is the prevailing party and entitled to recover costs. *324State v. Cummings, by strong implication at least, repudiates the resort to Article VII, § 3, of the Constitution in some of the earlier cases. Referring to Stabler v. Melvin and similar cases, the court said that they
“* * * were decided before the adoption of Oregon Laws 1921, eh 322. That statute is now ORS 20.310. Accordingly, when the four cases just cited were decided, no enactment of this state entitled the prevailing party, upon appeal in law actions, to an award of costs and disbursements.
“We have no right to ignore the demands of ORS 20.310. The prevailing party — in this case the appellant — is entitled to costs and disbursements.” 205 Or at 537.
The 1921 enactment referred to by the court in that case, and which is now ORS 20.310, reads:
“When costs are allowed to the prevailing party on appeal to the supreme court the appearance fees, trial fees, attorney fees, as provided by law; the necessary expenses of transcript or abstract, as the law or rules require; the printing required by rule of the court, and the transcript of testimony or other proceedings, when necessarily f orming part of the record on appeal, shall be taxed in the supreme court as costs of the appeal.”
As we have seen, however, the statute has provided since 1907 that the prevailing party is entitled to costs on appeal in the supreme court, and the 1921 enactment, therefore, instead of creating the right to recover costs, merely enumerated the recoverable items, including the expense of the transcript of testimony which theretofore had been held to be not taxable in the supreme court, but only in the circuit court. See Allen v. Standard Box & Lumber Co., 53 Or 10, 18-19, 96 P 1109, 97 P 555, 98 P 509 (1908); Sommer v. *325Compton, 53 Or 341, 100 P 289 (1909); McGee v. Beckley, 54 Or 250, 254, 102 P 303, 103 P 61 (1909).
We now hold that Article VII, § 3, of the Constitution cannot he resorted to for the purpose of awarding costs on appeal differently from the command of the statute. That section authorizes this court, when the entire record in a case tried hy a jury is brought before it and the court is of the opinion that the judgment was such as should have been rendered, to affirm the judgment, notwithstanding any error committed during the trial. The section further provides, as previously stated, that if the judgment should be changed and the court shall be of the opinion that it can be determined what judgment should have been entered in the court below this court may “direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court.” The power of this court to retry the facts of a case tried by a jury where error appears, first asserted in Hoag v. Washington-Oregon Corp., 75 Or 588, 144 P 574, 147 P 756 (1915) and frequently exercised since, was challenged in the dissenting opinion of Mr. Justice Rossman in Shelton v. Lowell et al, 196 Or 430, 249 P2d 958 (1952) and has not been resorted to since the decision in that case, notwithstanding the frequent urgings of litigants. But whether the power exists or not, it cannot be said that this court has been authorized by the Constitution to convert an action at law, in which parties are entitled to a trial by jury, into a suit in equity. See Lemler v. Bord, supra.
The constitutional provision was not intended to modify or repeal the statute governing costs on appeal. Even though it could properly be said that, when the court affirms a judgment or renders a different one *326pursuant to Article VII, § 3, it is authorized, as an incident to the exercise of that power, to determine the allowance of costs on an equitable basis, there is no justification for construing the provision as conferring on the court a separate and independent power to deal with a question of costs in that fashion. This case was decided wholly without regard to Article VII, §3.
“Costs are purely statutory. At common law they were unknown, and were not recoverable, and were not adjudged in the judgment of a case.” McKinney v. Nayberger, supra, 138 Or at 220. We take it to be now settled by our recent decisions that under our statute costs'and disbursements are allowed as a matter of course to the prevailing party on the affirmance or reversal of a judgment. It now remains to be determined, and this is the precise question before the court in this case, whether any different rule applies where a judgment is modified, and what is to be regarded as a modification for the purposes of the rule.
The 1907 amendment, it will be remembered, eliminated two exceptions to the provision of the original statute allowing costs on appeal to the prevailing party, namely, when a new trial is ordered and when there is a modification of the judgment. In such instances the court was formerly granted power to allow costs or not in its discretion. The effect of the amendment was to withdraw that discretion and leave the classes of cases theretofore excepted subject to the mandate that the prevailing party shall recover costs. In Patterson v. Horsefly Irrigation Hist, and State v. Cummings, both supra, we held after extensive review of our prior decisions that when a new trial is ordered the appellant, is the prevailing party and entitled to *327costs. Who is. the prevailing party when a judgment is modified? We think that the answer to that question must necessarily depend on the extent of the modification. It may be so trifling or unsubstantial that the decision amounts to an affirmance. See Steel v. Farrell, 31 Or 169, 49 P 974 (1897), where a decree was affirmed notwithstanding an error of $2.25. Whether a modification is of sufficient importance to put the party securing it in the position of the prevailing party within the meaning of the costs statute must be determined upon the facts of each case, 14 Am Jur 63, Costs § 98.
In any event, it is clear that under the statute there cannot be two prevailing parties on opposite sides of the same case. Nor can a decision disallowing costs be justified. As we said in Lemler v. Bord, supra: “It is well settled that in actions at law costs must be allowed to one party or the other”. 80 Or at 232. There is no provision for an apportionment of costs (cf. Phipps v. Taylor, 15 Or 484, 488, 16 P 171 (1887)) and we are aware of no decision of this court apportioning costs in a law action except Dixon et ux v. Schoonover et ux, 226 Or 443, 455, 359 P2d 115, 360 P2d 274 (1961) where the plaintiffs, who were both respondents and cross-appellants in this court, were successful in resisting the defendants’ appeal, but unsuccessful on their cross-appeal.
The rule'is the same as that stated in Propper v. Chicago, Rode Island & Pacific Railroad Co., 237 Minn 386, 408, 54 NW2d 840, 35 ALR2d 459, quoting from Hildebrandt v. Hagen, 228 Minn 353, 360, 38 NW2d 815, 820:
“It is'well settled here that the modification of a judgment entitles the party obtaining the same *328on appeal to costs and disbursements. This is true even though the disbursements were made in providing a record and brief on the issues upon which the party 'Obtaining the modification did not prevail. * * *”
In the present case the appellants obtained a substantial modification when this court reversed the judgment for malicious prosecution. They were the prevailing parties and entitled to statutory costs in the sum of $15, OKS 20.070, and their necessary disbursements pursuant to OKS 20.310. Bearing in mind that the power of the court to allow costs is wholly statutory and that the right to recover disbursements depends on the right to recover costs (i.e., statutory costs) we cannot, without doing violence to the statute, treat this case as three lawsuits and three appeals, in one of which the appellants are the prevailing parties and in the other two the respondents, and allow the appellants one-third and the respondent two-thirds of the statutory costs and disbursements. Nor can we resort to some other formula of apportionment deemed to be equitable. Indeed, the necessary — and absurd— result of treating the case as three lawsuits would be to award two statutory costs to the respondent as the prevailing party in two of them.
The original statute allowed this court a measure of freedom in dealing with such problems which unfortunately has since been denied it. As has been before observed, a change does not always denote progress or improvement. Another change in the direction of the 1862 Act governing costs on appeal in actions at law may seem to the legislative assembly to be desirable.
We adhere to our decision allowing costs to the appellants.
Since the party entitled to costs is also entitled to disbursements, the word “costs” is used as referring to both.