
    FERGUSON & McDARIS LUMBER COMPANY, Respondent, v. TIEDE & COMPANY, Appellant.
    St. Louis Court of Appeals,
    March 31, 1908.
    1. 'PRACTICE: Counterclaim: Verdict and Judgment. In an action on an account where the defendant admitted a certain sum to he due and filed a counterclaim, the jury returned a verdict on the counterclaim for a sum less than the amount admitted to he due on the plaintiff’s cause of action. Held, the court properly entered a judgment for the plaintiff for the difference between the admitted amount and the amount of the verdict on the counterclaim.
    2. -: Costs: The Prevailing Party. Under section 1547, Revised Statutes 1899, in all civil actions the prevailing party shall recover his costs of the losing party. Where, in an action on account, the defendant filed a counterclaim and recovered thereon an amount less than the sum admitted to be due on the plaintiff’s cause of action, the plaintiff was the prevailing party and entitled to his costs.
    3. -: Witnesses: Mileage. Subpoenaed witnesses, in traveling to court, traveled by railroad a longer distance than they would have had to go by wagon road and claimed their mileage for the distance traveled by railroad. The court, in overruling a motion to retax their costs, must have found that the miles they traveled were “necessarily traveled” within the meaning of section 3259 Revised Statutes 1899; that statute does not mean that witnesses must under all conditions travel the shortest route.
    Appeal from Christian Circuit Court. — Now,. John T. Moore, Judge.
    Affirmed.
    
      Addison Brown for appellant.
    (1) In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by statute. Revised Statutes 1899, sec. 1547. When an appeal is taken from the judgment of a justice of the peace, against the appellant, and on a trial in the appellate court the appellee recovers any sum, the appellant shall pay the costs in both courts. R. S. 1899, sec. 1555.
    
      Lee W. Grant and Pierre B. Kennedy for respondent.
    Though the amount which plaintiff recovers is reduced by set-off to an amount below the jurisdiction of the court he is still entitled to his- costs. Burton v. Martin, 4 Mo. 200; Hays v. Thomas, 3 Mo. 335.
   BLAND, P. J.

The suit was commenced before a justice of the peace to recover $222.16, the balance stated to be due plaintiffs for a carload of lumber sold and delivered to defendants by plaintiffs. Defendants filed an answer and counterclaim. The answer admitted the sale and delivery of the lumber. But claimed a rebate or set-off of $22, on account of some of the lumber being below the standard sold. The counterclaim alleged that defendants were damaged in the sum of $224.65, on account of plaintiffs’ failure to deliver defendants another carload of lumber which they had agreed and contracted to deliver. On the trial in the justice’s court defendants recovered a verdict for $41.32, from which plaintiffs appealed to the circuit court, where, at the September term, 1906, and on the fourth day of the month, the cause was tried de novo to a jury, who rendered the following verdict: “We, the jury, find the issues for the defendants on their counterclaim, and assess their damages at the sum of one hundred and sixty-five dollars.” On this verdict it was adjudged by the court, “that the plaintiffs recover of the defendants the sum of $200, and that defendants’ $165 counterclaim be deducted from thisand judgment was entered that plaintiffs recover of and from defendants $35, together with the costs taxed which amounted to $253. On September 24, 1906, the clerk of the court issued an execution against defendants for the collection of the judgment and costs. At the September adjourned term of the court, to-wit: on December 5, 1906, defendants filed the following motion, which the court overruled and defendants duly appealed:

“First. To modify the judgment to conform to the verdict of the jury.
“Second. To retax the costs to the plaintiffs.
“Third. To retax part of the costs to the plaintiffs.
“Fourth. To quash the execution.”

The only issue submitted to the jury was on the counter-claim, as appears by the following instructions given by the court:

“The court instructs the jury that if they find and believe from the evidence that John Tiede & Company contracted with the Ferguson-McDaris Lumber Company for certain lumber described in the exhibits to defendants’ answer, to be delivered at Billings, Missouri, about April and July, 1905, and further find that the Ferguson-McDaris Lumber Company failed ór refused to deliver the said lumber according to the contract, your verdict will be for the defendants, John Tiede & Company on the counterclaim. .
“If you find the issues for the defendants on their counterclaim you will assess the damages at a sum equal to the -difference between the contract price agreed to be paid and the market price of said lumber at Billings, Missouri, on' March 14, 1906,” etc.

The evidence heard on the trial is not before us. But the only reasonable inference to be drawn from the manner the case was submitted to the jury is, that plaintiffs conceded the rebate or set-off of $22 set up in the answer, thus eliminating from dispute the amount due plaintiffs on their cause of action ($200). For the reason the $200 was admitted to be due on plaintiffs’ cause of action, tbe court only submitted tbe counterclaim to tbe jury. When tbe verdict was returned tbe court had before it defendants.’ admission that there was $200 due on plaintiffs’ cause of action and tbe verdict of tbe jury, finding that $165 was due on. tbe counterclaim. With these ascertained amounts before it, tbe court properly rendered judgment for plaintiffs for $35, tbe difference between said sums.

2. Defendants contend that tbe costs should have been adjudged against plaintiffs. The statute (sec. 1547, R. S. 1899, Ann. Stat. 1906) provides that in all civil actions tbe prevailing party shall recover bis costs except where a different provision is made. Section 1555 provides that when an appeal is taken from a justice’s court, if tbe judgment, (of tbe appellate court) be in favor of tbe appellant, tbe appellee shall 'pay tbe costs of both courts. As tbe plaintiffs were tbe prevailing party on tbe trial de novo in tbe circuit court, we think they were clearly entitled to recover their costs under tbe provisions of tbe above statutes.

3. Eight of tbe witnesses in tbe cause resided at or near Billings, a town distant thirty or thirty-five miles from Ozark, tbe county seat. There are two ways to reach Ozark from Billings — one by dirt road, tbe other by rail. The distance by dirt road is a few miles shorter than by rail. The witnesses traveled to Ozark, tbe place of trial, by rail and claimed mileage by this route. Tbe court was moved to cut their mileage down to what it would have been by tbe dirt road. Tbe court refused to do so and this ruling is assigned as error. A witness in a civil suit, under tbe statute (sec. 3259, Ann. Stat. 1906) is entitled to “five cents per mile for tbe number of miles necessarily traveled in going to and returning- from the place of trial.” Tbe statute does not mean that tbe witnesses must, under all conditions and in every circumstance, travel tbe shortest route from his home to tbe place of trial, but means tbe usually traveled and most practicable route.. From tbe action of tbe court in refusing to cut doivn tbe mileage of tbe witnesses, tbe court doubtless found that tbe. usually traveled and most practicable route between Billings and Ozark tras by rail. On common knowledge of tbe babits of people to travel by rail when convenient, in preference to driving over rough dirt roads, we approve tbe action of tbe court in refusing to cut down tbe mileage of tbe witnesses, and affirm tbe judgment.

All concur.  