
    CHARLES O. OZIAS, Appellant, v. JOHN S. HALEY, Respondent.
    Kansas City Court of Appeals,
    January 10, 1910.
    JUDGMENT: Counterclaim: Costs: Motion to Retax. Plaintiff sued defendant for damages and defendant filed a counterclaim for damages in said suit. The action was not founded on contract. The jury returned a verdict in favor of plaintiff for $1250 and in favor of defendant for $2000 and the court properly entered a judgment for defendant for $750 and costs. Under our statutes the prevailing party in an action ex delicto is entitled to the costs of the action. The prevailing party is the one in whose favor final judgment is entered.
    Appeal from Johnson Circuit Court. — Hon. N. M. Bradley, Judge.
    Affirmed.
    
      James A. Kemper for appellant.
    (1) Plaintiff having obtained judgment in a substantial sum, against the defendant, was entitled to recover of and from the defendant, all costs necessarily incurred in the establishment of said cause of action. R. S. 1899, sec. 1547; Boothe v. Cowan, 5 Sneed (Tenn.) 354; Brattebo v. Tjernagel, 59 N. W. 278. (2) The taxing of the costs in this case was within the discretion of the court and under all the facts and circumstances that discretion should have been exercised in favor of tbe plaintiff, and said costs taxed against tbe defendant. R. S. 1899, sec. 1549; Bootbe v. Cowan, 5 Sneed (Tenn.) 354; Brattebo v. Tjernagel, 59 N. W. 278.
    
      J. W. Suddath, E. S. Bennett, M. D. Aber and O. L. Houts for respondent.
    (1) Unless some special statute, under tbe facts of tbe particular case takes it out of tbe general rule in an action at law, tbe prevailing party is entitled to costs. And where both parties are successful in part, and each succeeds in one or more of causes of action claimed, or issues, tbe one obtaining tbe judgment is tbe “prevailing party.” R. S. 1899, sec. 1547; 11 Cyc., pp. 27, 28; A. i., 2 a, b, I; 11 Oye., p. 31, d. c. (2) Tbis is an action ex delicto and tbe “special statutes” in tbis State providing for apportionment of costs between parties prevailing in part do not apply. Lamm v. Rai-ley, 127 Mo. App. 726, and authorities cited; 11 Cyc., p. 28, note 30. (3) Defendant in tbis case did not plead a number of separate and distinct defenses, “several matters” to use tbe language of tbe statute, but a single counterclaim upon which a verdict was returned and judgment rendered in bis favor. Tbe statute does not, therefore, apply to tbe facts in tbis case, even were tbe action ex contractu. R. S. 1899, secs. 1547-1549; Lumber Co. v. Tiede & Co., 130 Mo. App. 269; DuPont v. M'cLaran, 61 Mo. 502, 511; 11 Cyc., p. 30 (c). (4) If tbe amount allowed as setoff or counterclaim, exceeds tbe amount allowed on plaintiff’s demand, defendant is entitled to costs. 2 Cyc., p. 31; Gordordon v. Steinmetz, 71 Ohio St. 372, 73 N. E. 512; Eastman v. Holderness, 44 N. H. 18; Block v. Creditors (La. Ann.), 16 So. 272; Smith v. Building Assn., 119 N. C. 249, 26 S. E. 41; McCormack Harv. Co. v. Gilkey, 23 S. W. 325.
   JOHNSON, J.

Plaintiff appealed from an order overruling bis motion to retax costs. Tbe action was for fraud in tbe sale and exchange of a telephone plant owned by defendant for real estate owned by plaintiff. Damages in the sum of $7500 were claimed. Defendant answered and then pleaded a counterclaim consisting of several .items, among them, one for damages in the sum of $2000. A trial to a jury resulted in the verdict: “We the jury find the issues for the plaintiff and assess his damages in the sum of $1250, and we find in favor of the defendant on the first item of his counterclaim in the sum of $2000.” The court rendered judgment for defendant for $750, the amount 'of the difference in the award to each party, and for costs of suit. Plaintiff’s motion to retax states the following grounds:

“First. Because the same were erroneously taxed against the plaintiff. Second. Because under the verdict of the jury rendered in this cause plaintiff is entitled to recover his costs of and from the defendant. Third. Because the. plaintiff having sustained his cause of action and obtained a substantial judgment against defendant is entitled to recover his costs herein of and from the defendant.”

The court heard the motion and overruled it. Plaintiff argues that since he recovered on his petition, he should have judgment for his costs and that defendant should have judgment only for the costs he incurred in maintaining his counterclaim; that both plaintiff and defendant are prevailing parties within the meaning of section 1547, Revised Statutes 1899, the plaintiff as to the cause alleged in the petition, and the defendant as to the cause pleaded in his counterclaim; and that the court in the proper exercise of the discretion conferred by statute, sections 1549 and 1550, should have apportioned the costs. Defendant argues that there can be but one prevailing party — the one entitled to a judgment under the pleadings and verdict and that sections 1549 and 1550 do not apply, for the reason that this is an action ex delicto, and, consequently, is controlled by tbe provisions of section 1552. Tbe question at issue must be solved by tbe construction of tbe various sections of tbe statute to which we shall refer. Since tbe net result of tbe trial of tbe case was a judgment for defendant, no costs should be taxed against him unless tbe statute gives plaintiff tbe right to recover bis costs. Section 1547 of tbe statutes provides: “In all civil actions, or proceedings of any kind, tbe party prevailing shall recover bis costs against tbe other party, except in those cases in which a different provision is made by law.”

There can be but one prevailing party in an action at law for tbe recovery of a monéy judgment. It transpires frequently that in tbe verdict each party wins on some of tbe issues and as to such issues be prevails, but tbe party in whose favor tbe verdict compels a judgment is tbe prevailing party. Each side may score, but tbe one with tbe most points at tbe end of tbe contest is tbe winner, and under tbe section quoted is entitled to recover bis costs “except in those cases in which a different provision is made Toy law.” Tbe excepted cases are those mentioned in sections 1549 and 1550. Tbe first of these sections provides: “If a verdict shall be found on any issue in tbe case for plaintiff, costs shall be given at tbe discretion of tbe court.” And tbe second provides that “if a verdict on any issue joined thereon shall be found for tbe defendant costs shall be awarded at tbe discretion of tbe court.” Tbe clause “on any issue in tbe case” is very comprehensive. Tbe term “case” includes all the issues presented by tbe parties for judicial inquiry and determination. It embraces tbe issues tendered by tbe counterclaim of tbe defendant as well as those tendered by tbe petition. Tbe statutes (sec. 1549) 'declares that if tbe verdict, not tbe judgment, is for tbe plaintiff on any of tbe issues tbe court shall have and exercise a discretion in tbe taxing of costs.

We come now to tbe section invoked by defendant (1552) which is as follows: “In all actions not founded on contract the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover his costs.” In construing this section the courts of this State have held that sections 1549 and 1550 have no application to actions ex delicto; that in such cases the plaintiff is entitled to his costs if he recover on any count of his petition in any amount, however small, and that the court has no discretion to exercise or power to apportion the costs. [Sec. 1552, Revised Statutes 1899; Acks v. Ball, 14 Mo. l. c. 398; Vineyard v. Lynch, 86 Mo. 684; Bybee v. Irons, 33 Mo. App. l. c. 662; Haseltine v. Railroad, 39 Mo. App. l. c. 440; Lamm v. Railway, 127 Mo. App. 726; Dupont v. McLaran, 61 Mo. l. c. 511; Lumber Co. v. Tiede & Co., 130 Mo. App. 269; Cyc. 11, p. 31.]

Since the action before us is not founded on contract, we agree with defendant that it is governed by the statute last quoted and that the court had no discretion to exercise. We think the word “recover” refers to instances where the plaintiff is entitled to a judgment and not to cases where he prevails as to certain issues, but on the whole case suffers a judgment against him. Our analysis of the statutes convinces ns that the proper rule to he applied in this case is that stated in the following excerpt from the Cyclopedia of Law and Procedure, vol. 11, p. 31: “Where a setoff or counterclaim has been filed and allowed, wholly or in part, the party in whose favor final judgment is rendered will be entitled to costs in the absence of some special statutory provision changing the general rule which gives costs to the prevailing party. In other words, plaintiff is entitled to costs if he has judgment for an amount in excess of the setoff or counterclaim allowed. By parity of reasoning, if the amount allowed as setoff or counterclaim exceeds the amount allowed on plaintiff’s demand, defendant is entitled to costs.”

The judgment is affirmed.

All concur.  