
    [No. 13343.
    Department Two.
    January 24, 1917.]
    Phoenix Assurance Company, Limited, Respondent, v. Columbia & Puget Sound Railroad Company, Appellant.
      
    
    Costs — On Appeal — Prevailing Party — Abiding Result. Where a case is reversed for new trial for error that was partly the fault of appellant, it is inadvertent to award him the costs of the appeal; nor can they be awarded to the respondent, in view of Rem. Code, § 1744, which provides that, when a new trial is ordered, the court may in its discretion direct that costs of the prevailing party shall .abide the result of the action; which should be the order in such a case.
    Motion to modify judgment for costs, filed in the supreme court September 5, 1916.
    Granted.
    
      Farrell, Kane & Stratton and Stanley J. Padden, for appellant.
    
      Shepard, Burkheimer & Burkheimer, for respondent.
    
      
      Reported in 162 Pac. 519.
    
   Motion to Modify.

Per Curiam. —

By the original opinion of this department in this case (92 Wash. 419, 159 Pac. 369), the case was remanded for a new trial on account of error by the trial judge. It was then shown that the error was in part the fault of appellant. Costs of appeal were allowed appellant as for a complete reversal. This was inadvertent. Respondent has moved for modification, either to allow respondent costs of appeal, or to order that such costs abide the result of the action.

Costs cannot be awarded to the respondent under .the statute because it is not the “prevailing party” on appeal. Section 174*4!, Rem. Code, provides:

“And when the judgment is reversed and a new trial ordered, the court may in its discretion direct that costs of the prevailing party shall abide the result of the action.”

That should have been the order in this case, under the circumstances. Respondent’s second alternative request for modification will be granted.

It is therefore ordered that the original opinion be and is hereby corrected and modified so that neither party shall recover costs of appeal presently, but the same shall abide the result of the action and go to the party finally successful.  