Nowogroski v. Southworth

• Decision Date: 18 February 1918
• Docket Number: 14251.
• Court: Washington Supreme Court
• Parties: NOWOGROSKI v. SOUTHWORTH.

170 P. 1011

100 Wash. 336

NOWOGROSKI v. SOUTHWORTH.

No. 14251.

Supreme Court of Washington

February 18, 1918

Department 1. Appeal from Superior Court, Pacific County; H. W. B Hewen, Judge.

Action by Boleslaw Nowogroski against Nellie Southworth. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred M Bond, of South Bend, for appellant.

Harold B. Swasey and Geo. T. Swasey, both of Raymond, for respondent.

FULLERTON J.

The respondent Nowogroski instituted this action against the appellant Southworth to recover upon a promissory note and foreclose a chattel mortgage given to secure the same. The complaint was in the form usual in such cases. The answer admitted the execution of the note and chattel mortgage, but denied that there was anything due thereon. For an affirmative defense it set up that the note represented the purchase price of a buggy and two cows sold by the respondent to the appellant; that the cows were represented to be healthy and in good condition, when in fact one of them was diseased, and both were afflicted with vermin, which was communicated to the appellant's other cattle to their deterioration and cost of cure in a sum in excess of the amount of the note. Issue was taken on the answer and a trial had to the court, which resulted in a judgment for $25 less than the amount of the note, with the costs of the action. This appeal is from the judgment entered.

The appellant did not bring the evidence into this court, and consequently makes no contention here as to the judgment on the merits of the action. She contends, however, that since she recovered a judgment on the affirmative matter in her answer, she was entitled to costs, and that the court erred in allowing costs to the respondent. But the statute provides that costs shall be allowed the prevailing party, and we held in Empire State Surety Co. v. Moran Bros. Co., 71 Wash. 171, 127 P. 1104, that the prevailing party under the statute is that party who has an affirmative judgment rendered in his favor at the conclusion of the entire case. The affirmative judgment here was in favor of the respondent and under the rule of the case cited was the party entitled to costs.

A cost bill was filed with the clerk in which the respondent set forth as taxable costs his disbursements in the action. This was stricken on motion for want of verification, whereupon the respondent within the period allowed by the statute filed an amended cost bill correct in form. Costs were taxed in accordance with the amended bill, and error...