
    Brinck v. Neiweg.
    Costs: appointment oe : pbactice. An order apportioning costa will not be distributed in the absence of a showing of the facts and circumstances of the case upon ,which the courts below acted in making the order
    
      Appealed from Lee District Qourt.
    
    Wednesday, August 31.
    This action was commenced before a justice, the plaintiff claiming $6.20 upon an account. The answer was in denial, .and also claimed a set-off for $7.00, balance due on hogs sold.
    Before the justice plaintiff had judgment for the whole amount claimed. Defendant appealed, and in the circuit court he had verdict and judgment for five cents, and was required to pay half the costs, plus one dollar, to reverse which latter order- he prosecutes this appeal.
    
      F. Semple for the appellant.
    , Withrow <& Wright and Jno. Van VaTkenhurg for the appellee.
   Wright', J.

Aside from the affidavits of certain jurors, to the effect that they regarded defendant’s set-off strongly equitable, that they yielded to the verdict for five cents as a compromise to end the litigation, and that it would be equitable to require each party to pay his own costs, we know nothiiig of the equitable circumstances apparent to the court below, and upon which it was the duty of that court, as of this, to act. We are not advised as to amount of costs, either in the aggregate, or as made by the respective parties. It is very evident that plaintiff either failed as to a large part of his demand, or that defendant recovered for a great proportion of liis set-off In this state of the record, we would not be warranted in interfering with the order as to costs. The ease is, in principle, covered by Arthur v. Funk, 22 Iowa, 238. As far as we can see, it is one of those cases where the court was justified in making an “equitable apportionment of costs.” Rev. § 3449. Or if not this, then one where defendant was entitled to recover “ costs upon the issues determined in his favor.” § 3451. There is nothing to satisfy us that the court below did not follow the statute.

The cases cited by appellant’s counsel are not applicable to this.

Affirmed.  