Lanyon and another vs. Woodward.

of replevin, when it is found on the trial that a portion of the goods replevied are owned by the plaintiffs and another portion by the defendant, was not alluded to in any way on the hearing of the former appeal. As the question of costs is not a matter in issue on the trial of an action, and as the question as to who was entitled to the costs of this action was not discussed in this court on the former appeal, and was not in fact passed upon by this court, we are inclined to hold that that question has not been adjudicated by this court in favor of the appellants, and that the question is still open in this case for its determination.

Upon the merits of this question the appellants claim that the statute regulating costs is conclusive as to the right of the plaintiffs to recover them in this action; and they rely upon sec. 2918, R. S., which reads as follows: "Costs shall be allowed, of course, to the plaintiff in an action in the circuit court upon a recovery in the following cases, except when otherwise specially provided by law." Subd. 2 says the plaintiff shall recover costs “in an action to recover personal property, when the value of the property recovered is fifty dollars or more." Sec. 2920 reads as follows: "Costs shall be allowed, of course, to the defendant in the actions mentioned in the two preceding sections, unless the plaintiff be entitled to the costs therein; but when there are several defendants not united in interest, and making separate defense by separate answers, and the plaintiff recovers against one or more, but not all of such defendants, the court may award costs to such of the defendants as have judgment in their favor, or to any of them."

The learned counsel for the appellants insists that under these provisions it is clear the plaintiffs are entitled to costs. The action is for the recovery of personal property, and they recovered property exceeding in value the sum of $50; and as under said subd. 2, above quoted, the appellants are entitled to recover costs, no costs can be awarded to the

Lanyon and another vs. Woodward.

defendants under the provisions of sec. 2920, above quoted. It is insisted that it is no answer to their contention that the rule fixed by the statute may work injustice in an action of replevin, when the defendant in fact recovers, or has a judgment in his favor, for the most valuable part of the property replevied in the action. The statute having fixed the right of the plaintiffs to recover their costs in this action, the court cannot, without usurping legislative authority, say that they shall not recover such costs.

The position of the appellants is apparently sound, and we shall not undertake to qualify it so far as their right is concerned. But we are of the opinion that notwithstanding the provisions of secs. 2918, 2920, above quoted, the defendant in an action of replevin may also be treated as a plaintiff in the action so far as he claims a return of the property replevied, or some part of it, in his answer; and that if he prevails, in whole or in part, upon such answer, he may also recover such part of his costs as he has incurred in sustaining that part of his answer. In replevin, when the property is seized and delivered into the possession of the plaintiff, the defendant, if he sets up title to the property, or the right to the possession of the same, as against the plaintiff, becomes a plaintiff, and is the actor in establishing his claim. If by the final judgment of the court he is declared entitled to such property, or to any part of it, as to that he obtains a judgment against the plaintiff for the return of the property, or for the value thereof, with damages. Although the statute does not expressly provide for judgment in favor of the plaintiff for a part of the property, and at the same time for a judgment in favor of the defendant for another part, if the evidence shows that the plaintiff has the right to but a part of the property delivered to him by the writ, and that the defendant has right to the remainder, it does so in substance, and it is the everyday practice of the circuit courts to render such judgments,

Lanyon and another vs. Woodward.

and no one has questioned the power of the courts to do so. It was done so in the case at bar, and no one makes complaint on that ground.

Sec. 2859, R. S., provides, in regard to the form of the verdict of the jury, that "in an action of replevin, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if the verdict be in favor of the plaintiff, or if they find in favor of the defendant that he is entitled to a return thereof, and may at the same time assess the damages, if they are claimed by the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property." And sec. 2888, R. S., provides that "in an action of replevin judgment may be for the possession, or for the recovery of the possession, of the property, or the value thereof in case a delivery cannot be had, and of damages for the detention; and when the property shall have been delivered to the defendant under section 2722, judg ment may be as aforesaid, or absolutely for the value thereof, and damages for the detention, at the plaintiff's option. If the property have been delivered to the plaintiff, and a defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same." See, also, as bearing upon this subject, sec. 2883, R. S., as to the power of the court to give judgment in favor of one or more defendants and against other defendants.

Under these statutes it has always been held to be com petent, and even necessary to a complete termination of the action, in case the property has been delivered to the plaintiff and the defendant by his answer claims a return thereof, and the jury find that a part of the property so replevied and delivered to the plaintiff belongs to the plaint

Lanyon and another vs. Woodward.

iff, and that another part belongs to the defendant, that the value of each part shall be found by the jury, and that they shall assess the damages of the plaintiff for the part found to belong to him, and shall also assess the damages due to the defendant by the taking and withholding of that part found to belong to him, and the judgment must be entered in favor of each party in accordance with the verdict. The question whether, in entering up such a judgment, partly in favor of the plaintiff and partly in favor of the defendant, costs may be awarded to the defendant upon the judgment entered in his favor, does not seem to have been passed upon by this court.

In New York, previous to the enactment of the Code, it was held that when the defendant in replevin by his plea claimed the property and justified the taking complained of by the plaintiff, he assumed the attitude of a plaintiff, and could recover costs if he had judgment in his favor for a part of the property taken by the writ; and especially was that so if the value of the part he had judgment for would have entitled him to costs had he been plaintiff in an action to recover the same. Small v. Bixley, 18 Wend. 514; Seymour v. Billings, 12 Wend. 285; Johnson v. Fellows, 6 Hill, 353. The same ruling has been made in the courts of that state since the enactment of the Code and of a statute in regard to costs in all respects like our statute above quoted. See Voorhies' Code, 1871, pp. 487-491; Porter v. Willet, 14 Abb. Pr. 319; Summers v. Jarvis, 14 Abb. Pr. 322; Hull v. Halsted, 1 How. Pr. 174; 3 Wait's Pr. 464.

The New York courts, in adopting the rule that both párties may recover costs in an action of replevin under the Code, when each party prevails as to a part of the property taken and delivered to the plaintiff, place some stress upon other provisions of their statute, which it is claimed were not repealed by the new law declaring when the parties should recover costs; but the main ground, and we think

Lanyon and another vs. Woodward.

the true ground, upon which the right is based is that both parties are actors, and the defendant in replevin, when he justifies and demands a return of the property taken by the plaintiff, is, as to the issue raised by that answer, the real plaintiff, and if he succeeds he gets a judgment for relief in his favor as much so as he would in any other action upon a defense by way of counterclaim. It is in the nature of a counterclaim, in an action for a tort, allowed by law; and if the same rule could be applied to the case as in an action upon contract, when the defendant recovered in replevin property of more value than that recovered by the plaintiff, he would be entitled to the costs of the action and the plaintiff would not be entitled to recover any costs. But as the statute has declared that he may recover costs in such action when he recovers property of the value of $50 or more, we cannot say that he shall not recover costs because the defendant in the same action recovers property of him which he has wrongfully taken by his writ in the action. While we cannot deprive the plaintiff of his costs, we think the defendant may also recover costs in the same action, on his recovery from the plaintiff.

We do not wish to be understood as holding that the defendant in replevin can recover costs in an action when there is a verdict finding in favor of the plaintiff as to a part of the property claimed by the plaintiff, and in favor of the defendant as to the remainder of the property, in any case except when the property has been taken and delivered to and retained by the plaintiff under the writ issued in the case. Nor do we determine that the defendant would, in any case, be entitled to costs in case the value of the property to which the court finds he is entitled is less than $50.

As we hold that the plaintiff and defendant were both entitled to recover their costs of this action, and as the judgment does not award costs to either, we are unable to