
    SCHOONOVER v. STILLMAN.
    Jackson,
    September Term, 1875.
    COSTS. Divided on. affirmance because of remittitur, when.
    Where the appellee is forced to a remittitur in order to obtain an affirmance of the judgment below, the costs will be divided. The rule is that costs follow the judgment in favor of the successful party, but where both parties are partly successful, -the costs are in the discretion of the court.
    Cited and construed: Cede (1858 and 1871), sec. 3320; Code (M. & V.), sec. 3945; Shannon’s Code, sec. 4962.
   Nicholson, C. J.,

delivered the opinion of the court:

Stillman sued Schoonover on several notes, including one of $2,000, on which was a balance of about $500. Judgment ivas rendered on this note for balance. As to so much of the judgment, the.court erred in refusing a new trial — the newly discovered evidence malting it certain that this $500 had been paid. For this error the judgment was reversed, unless Stillman would remit the $500. This is now done, and the question is as to costs. Upon the reversal the costs would fall on Stillman, but by his remittitur he has an affirmance as to the balance of the judgment. In such case the court has discretion as to costs by sec. 3230 of the Code [Shannon’s Code, sec. 4962], and in this case orders the costs of the appeal to be divided, the costs below not disturbed.  