Hartwig v. Eliason

WiNsnow, C. J. Plaintiff sued defendant for slander, and defendant, in addition to certain affirmative defenses, counterclaimed for libel. Tbe action was tried and tbe jury by special verdict found botb tbe slander and tbe libel and assessed tbe damages of each party at six cents. Tbe court offset tbe damages, rendered judgment for tbe defendant for full costs, and tbe plaintiff appeals.' Tbe only question raised is as to tbe right of tbe defendant to recover costs. This is purely a question of statutory [332] construction and. we think the statutes were correctly construed. by the trial court. The fundamental statutory provisions are sec. 2918 and 2920, Stats. Sec. 2918 provides that costs shall be allowed to the plaintiff upon a “recovery” . . . “in an action of . . . libel, slander, . . .” but if he recover less than $50 damages he shall recover no more costs than damages. Sec. 2920 declares that the defendant shall be allowed costs in such actions unless the plaintiff be entitled thereto'. » It follows from these provisions that if the plaintiff here “recovered” six cents damages he is entitled to six cents costs and the present judgment is wrong, but if the plaintiff recovered nothing the defendant is entitled to full costs and the judgment is right. It all depends on the meaning of the word “recovery*” in sec. 2918. However the word may be construed in other connections, it appears certain from the provisions of secs. 2859 -and 2861, Stats., that it means judgment in the cost statute and not verdict. These sections make it clear that in actions for money damages, where a counterclaim is interposed, there are never two recoveries but only one, namely, the difference between the sums allowed by the jury or the court to the respective parties. Here the amounts allowed by the jury were equal, and the court properly offset them and rendered .judgment for costs to the defendant because there was no recovery by the plaintiff. The cost bill was large in the present case and the result seems not entirely just in view of the fact that the battle was practically drawn, but this is a matter for the consideration of the legislature, not the court. By the Court. — Judgment affirmed.