Schoonover v. Stillman

3 Shan. Cas. 574

Opinion

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.