
    Erskine v. McCutchan and Others.
    Action to quiet the title to land. One of the defendants disclaimed any interest in the land. The statute provides that in all civil actions, the party recovering judgment shall recover costs, except where a different provision is made by law. Held, that this case, except as to the party who disclaimed, is not within any statutory exception.
    There may be cases in which a judgment for the plaintiff may be withheld, unless he will accept it on the equitable condition of paying costs; but this is not such a case.
    
      Friday, June 5.
    APPEAL from the Vanderburgh Circuit Court.
   Gookins, J.

Erskine, the appellant, brought this suit against the appellees, as heirs at law of John Me Cutchan, deceased, to quiet his title to a tract of land.

One of the defendants disclaimed any interest in the land. The others made an issue, which was tried by the court.

J. G. Jones and A. Iglehart, for the appellant.

J. Lockhart, W. F. Parrott, and G. Denby, for the appellees.

Judgment was rendered for the plaintiff in accordance with the prayer of the complaint, and for the defendants for costs; to which latter, the plaintiff excepted, and appeals for the purpose of reversing this judgment for costs.

In all civil actions, the party recovering judgment shall recover costs, except in those cases in which a different provision is made by law. 2 R. S. p. 126, s. 396. This case, except so far as relates to the party who disclaimed (2 R. S, 168, s. 613), is not within any exception of the statute. The action was defended; and after the finding by the Court, the .defendants moved for a new trial. The plaintiff was, therefore, entitled to costs.

There may be cases in which a judgment for the plaintiff should be withheld, unless he will accept it on the equitable terms of paying costs (Hill v. Kirby, 7 Ind. R. 217); but this is not a case of that kind.

Per Curiam.

The judgment for costs is reversed. Cause remanded, with instructions to the Circuit Court to render a judgment in favor of the plaintiff for costs against the defendants, except Hester Highland, who disclaimed, and in her favor against the plaintiff for her costs. Judgment for the appellant for costs against the same parties here.  