
    M. F. SCOTT v. KAHELE APAU.
    Error to the Third Circuit Court.
    Submitted October 7, 1899.
    Decided October 21, 1899.
    Frear and Whiting, JJ., and Circuit Judge Perry in plage oe Judd, O. J., absent.
    It is error to award costs against the appellee in actions at law where appellant plaintiff fails in the circuit court, on appeal, to recover at least one-fifth more than the amount recovered in the district court. Costs should have been awarded in the circuit court in such case to the appellee, and against the plaintiff appellant, under Civil Laws, Sec. 1495, Sub-sec. 3.
   OPINION OF THE COURT BY

WHITING, J.

Ah action of trespass was brought by Kahele Apau against M. F. Scott in the District Court of North Kona, Island of Hawaii and judgment rendered for the plaintiff there for $6. The plaintiff Apau appealed to the circuit court and the case was heard by the circuit judge without a jury. The circuit judge found for the plaintiff Apau and gave “judgment with nominal damages fixed at one dollar. Defendant to pay costs.”

Assignment of errors.

“1. It appears on the face of the record that the plaintiff in whose favor judgment was rendered appealed and recovered in the appellate court less than the judgment in the District Court, and that yet she was awarded costs therein.”

“2. That defendant tendered to plaintiff and deposited in court an amount of money more than sufficient to make full payment of plaintiff’s demand, and yet costs were taxed against him after said tender and deposit.”

L. Andrews for plaintiff in error.

AcM and Johnson for defendant in error.

In regard to this second assignment of error it appears that plaintiff in error has withdrawn his deposit except $1 left to satisfy the judgment.

Civil Laws, Sec. 1495. “Costs shall be allowed to- the prevailing party in judgments rendered on appeal, in all cases, with the following exceptions and limitations:

3. If plaintiff in whose favor judgment is rendered, appeal, and he shall not recover in the appellate court at least one-fifth more than the amount recovered below, costs shall be awarded to the appellee.”

The defendant in error, Apau, having failed to recover on appeal more than $6, adjudged in district court, to say nothing of at least one-fifth more, then the decision of the circuit judge on appeal awarding costs against the appellee Scott was error. The costs should have been awarded to- him.

There being error as set forth in the first assignment, the decision of the circuit judge is so far reversed as to the awarding costs against the defendant and the case remanded to the circuit court with direction to award costs to the appellee Scott and against the appellant therein, Apau.

The writ is allowed.  