
    No. 8733.
    Baltimore, Ohio and Chicago Railroad Company v. Crissman.
    
      •Costs. — Judgment Less than, Fifty Dollars. — Actions on Contract and in Tort.— Trespass. — Two actions, one on a money demand on contract, the other for trespass to lands, were consolidated. The defence was a mere denial. There was a verdict for the plaintiffs for $48, of which $20 was for the trespass, and $28 upon the contract, and there was a remittitur of $20, and judgment for the plaintiff for $28 and costs, a motion by the defendant for judgment in its favor for all costs having been overruled.
    
      .Held, that under the statute, sections 590, 591, 592 and 594, R. S. 1881, there was no error in overruling the motion, inasmuch as it did not appear by the record that there was not a recovery of $5 for the trespass.
    . Held, also, that the record presented no question as to the right of the defendant for judgment for costs of the issues made on the demand upon contract.
    Prom the Porter Circuit Court.
    
      J. H. Carpenter, A. L. Jones and M. L. DeMotte, for appellant.
    
      W. Johnston, for appellee.
   Black, C.

The appellee sued the appellant, the complaint •being in two paragraphs.

The first paragraph stated, in substance, that the appellant, in 1873, without leave, wrongfully entered on certain land ■described, in Porter county, in this State, of which the appellee then was and still remained the owner, other than the ■ appellant’s right of way through and over said land; that -appellant also, cut timber thereon of the value of $150, and carried it away and destroyed it, and covered up said land, and put embankments of dirt and gravel thereon, to the dam-age of the land in the sum of $150; and that the appellant still unlawfully held possession of said land.

The other paragraph (numbered the third, the second having been dismissed by the appellee) alleged that the appellee was the owner and in possession of certain land described, being the same tract mentioned in the first paragraph, except •.a portion of said tract used and occupied by the appellant for its right of way over the same, which land, with other land described, he used as a farm; that by decree of the Porter-Circuit Court) entered at its December term, 1877, in an action pending therein between the appellant and the appellee,, and by a deed made by the appellee to the appellant, a copy of which is made an exhibit, the appellant was bound to put in a farm-crossing for the appellee, at a certain place mentioned on said premises, and to put in a culvert; to lead off the water from appellee’s ditch, running up to said right of' way on said premises, or, in lieu thereof, was to dig a ditch connecting with appellee’s ditch, and conducting the water therefrom to the culvert east of said ditch; that appellant-had failed and refused to dig said ditch, or put in said culvert, or make said farm-crossing, although often requested so to do) that appellee had been compelled to cross appellant’s. railroad tracks and side tracks without any crossing being-made since the entry of said decree and the making of said deed, in going to and returning from each portion of his-farm, and had broken his wagon and sled thereby in crossing ; that the water had been backed upon his lands, and the same had been greatly damaged for want of said ditch or culvert-; and that by reason of the premises he had been damaged in the sum of $500. “Wherefore he demands judgment for $1,000, and that the defendant may be compelled to make-said crossing and dig said ditch, or put in said culvert, and for all other and further proper relief.”

By the deed made part of this paragraph, the appellee and his wife conveyed and warranted to the railroad company a strip-of land for the road of said company, through and across a tract of land described as in said paragraph, and it was stipulated in said deed that said company agreed and was bound as alleged in said paragraph.

A demurrer for misjoinder of causes of action was sustained to, and the court ordered that a separate action be docketed on,, the first paragraph; but afterward, by agreement, the causes were consolidated.

The appellant answered by a general denial.

A trial resulted in a verdict for the appellee for forty-eight dollars.

The evidence is not in the record, but, in answer to interrogatories, the jury indicated that, of the amount awarded by the verdict, the sum of twenty dollars was given upon the first paragraph of the complaint, and that the sum of twenty-eight dollars was given upon the third paragraph.

A motion for a new trial having been made by the appellant, the appellee remitted twenty dollars of the amount of the verdict; and thereupon the motion for a new trial was overruled, and judgment was rendered for the appellee for the sum of twenty-eight dollars and costs.

The appellant then moved for judgment for costs in its. favor. The motion was overruled, and the question involved in this action of the court is the only one discussed by counsel here.

In support of the objection to the ruling, reference is made to the statutory provision, that, “In actions for money demands on contract, commenced in the circuit court,* * if the-plaintiff recover less than fifty dollars, exclusive of costs, he shall pay costs,” etc. 2 R. S. 1876, p. 194, section 397.

“ The phrase *' money demands on contract ’ when used in reference to an action, means any action arising out of contract, where the relief demanded is a recovery of money.” 2 R. S. 1876, p. 314, section 797.

By section 398, 2 R. S. 1876, p. 195, it is provided, that, “ In all actions for damages solely, not arising out of contract, if the plaintiff do not recover five dollars damages, he shall recover no more costs than damages, except in actions for injuries to character and false imprisonment, and where the title to real estate comes in question.”

And it is provided by section 400, 2 R. S. 1876, p. 196, that, where there are several issues, each party shall recover costs upon those determined in his favor.

The first paragraph of the complaint was based upon a cause of action for damages solely, not arising out of contract ; and if it had been the only paragraph, upon a recovery thereunder of less than five dollars the appellee would have recovered no more costs than damages; but upon a recovery by the appellee of any amount, the appellant could not have had judgment for costs.

The third paragraph set forth a cause of action for a money demand on contract. The question whether or not it also presented a cause of action for specific performance, has not been argued or stated by counsel. The prayer could not change the nature of the action. Hunter v. McCoy, 14 Ind. 528; Goodall v. Mopley, 45 Ind. 355.

Whether the facts stated were sufficient to support a demand for specific performance, need not be decided, under the view we take of the case.

Assuming that the third paragraph stated only a money demand on contract, which is the construction most favorable to the appellant, then, if this paragraph had been the only •one, and if, under the issue made thereon by the general denial, the appellee had recovered only the amount awarded by the jury under the third paragraph, a motion by the appellant for judgment in his favor for costs should have been sustained.

Before the rendition of judgment, the appellee remitted twenty dollars "of the verdict.” There is nothing in the record to indicate whether this sum was remitted from the amount awarded under the third paragraph, or was remitted as the sum awarded under the first paragraph, or was remitted in part from the amount^ awarded under each paragraph.

The fact that it was the same sum as the amount awarded under the first paragraph, is a coincidence which does not necessarily indicate that the award under that paragraph was remitted. The remittitur was an abatement of the excess of the whole verdict.

The nature of the cause of action set forth in each paragraph ■of the complaint does not preclude the idea that the amount remitted may have been deducted in part from the amount awarded by the jury on each paragraph, or wholly from the award upon the third.

Thus, the record does not show whether the recovery was upon the third paragraph alone, or upon both paragraphs.

The question is not presented whether, if the recovery was in part upon each paragraph, the appellant was entitled to judgment for costs on the issue formed upon the third paragraph.

The motion was not for judgment for costs upon a particular issue, but was for judgment for all the costs expended by the appellant in the action.

This court must indulge every presumption that the case shown by the record admits, in favor of the action of the trial court. We can not say, upon the record before us, that the court should have sustained the appellant’s motion. See Hatwood v. Campbell, 51 Ind. 83; Eigenmann v. Kerstein, 72 Ind. 81.

The j udgment should bo affirmed.

Pee Cueiam. — It is ordered, upon the foregoing opinion, that the judgment be and it is hereby affirmed, at the costs of the appellant.  