
    James F. Foster vs. Joseph Hansman.
    Submitted on briefs Oct. 17, 1893.
    Affirmed Oct. 27, 1893.
    No. 8418.
    Costs on appeal from the judgment of a Justice of the Peace.
    The defendant who appeals from the judgment of a Justice of the Peace to the District Court, and who, although he does not reduce the recovery against him one-half, succeeds upon the only matter litigated in the action and appeal, is entitled to costs.
    
    Appeal by plaintiff, James F. Foster, from a judgment of tbe District Court of Clay County, Frank Ives, J., rendered February IS, 1898, for $65.21 damages, less $22.86 costs, taxed and allowed tbe defendant, Joseph Hansman.
    Plaintiff brought tbis action in a Justice’s Court to recover $90 and interest due him from defendant upon a promissory note. Tbe defendant by bis answer admitted this debt. For counterclaim be alleged that plaintiff owed him $6.05 for sand, plaster and cement and $30 for making plans for plaintiff for an addition to bis bouse and he tendered tbe balance. The^plaintiff in bis reply admitted the counterclaim of $6.05 and denied tbe other for $30. Tbis issue was tried before tbe Justice who gave judgment November 21, 1892, for plaintiff for $95.41 damages, and $5.70 costs. Tbe defendant appealed to tbe District Court on questions of both law and fact. On tbe trial in that Court January 5, 1893, tbe jury allowed tbe defendant the $30 and returned a verdict for plaintiff and assessed bis damages at $65.21. Tbe Clerk taxed defendant’s costs at $22.86 and deducted them from tbe amount of tbe verdict .and entered judgment for plaintiff for $42.35. The plaintiff duly objected to the allowance of costs to the defendant and appealed from the taxation of the Clerk, but the Court affirmed the taxation. Plaintiff thereupon appealed from the judgment to this Court and assigned as error the allowance of costs to defendant.
    (Opinion published 56 N. W. Rep. 592.)
    
      C. A. Nije, for appellant, cited Flaherty v. Rafferty, 51 Minn. 341, and Watson v. Ward, 27 Minn. 29.
    
      A. Ross, for respondent.
   GilfillaN, C. J.

The action was on a promissory note before a Justice of the Peace. The answer admitted plaintiff’s claim, and set forth a counterclaim consisting of six items, and amounting in the aggregate to $30.05. The reply admitted five of the items, and denied one for $30. That item was therefore the only thing in controversy in the action. The Justice decided upon that item in favor of plaintiff, and gave him judgment for $95.41 and costs. On an appeal • by defendant to the District Court on questions of law and fact, the jury rendered a verdict in favor of plaintiff for .$65.21, thus deciding upon the item of $30 in favor of defendant. He was, therefore, the successful party upon the only matter litigated in the action and on the appeal, as is shown by the pleadings, which, under the last clause of 1878 G. S. ch. 67, § 14, entitled him to costs.

Judgment affirmed.  