The opinion in this case has drawn two motions. Appellant has filed a motion for rehearing and reargues assignments of error heretofore considered. We have again carefully reviewed the record and find the motion without merit, and accordingly it is denied. Appellee has filed a remittitur of *Page 644 $50 and asks that the costs be taxed against the appellant.
The statute formerly left the court no discretion in the assessment of costs. Childers v. Hubbell, 15 N.M. 450, 454,110 P. 1051; King v. Tabor, 15 N.M. 488, 110 P. 601. The statute was amended in 1917 so as to vest discretion in this court. 1929 N.M.Comp.St. § 105-1301 (as to district courts see amendment, Laws 1933, c. 16). Our territorial court in cases of this sort seemed to favor the division of the costs of appeals between the parties. That rule prevails in several other jurisdictions. Peninsula Terminal Co. v. Sterling, 113 Fla. 103, 151 So. 520; Cobb v. McCall, 116 Fla. 308, 156 So. 705; Tyler v. Walt,184 La. 659, 167 So. 182; Weatherspoon v. Stackland, 127 Or. 450,271 P. 741; Williams v. Gray, 62 Mont. 1, 203 P. 524; Brotherhood Acc. Ass'n v. Jennings, 44 Colo. 144, 96 P. 985. It appears that justice would be done in the case at bar if the cost of the appeal should be borne equally by the respective parties.
The cause will be remanded to the district court, with directions to reform its judgment by reduction of said judgment in the sum of $50. The costs of this appeal will be taxed one-half to appellant and one-half to appellee. It is so ordered.
SADLER, BICKLEY, and ZINN, JJ., concur.
BRICE, J., being disqualified, did not participate.