upon the following section of the statute: "In actions where there are several plaintiffs or several defendants the costs shall be appor- tioned according to the several judgments ren- dered, and when there are several causes of action embraced in the same petition, or several issues, the plaintiff shall recover costs upon the issues determined in his favor, and the defendant shall recover costs upon the issues determined in his favor." Code, § 2084. The contention is that under the first clause of this section it was mandatory upon the district court to apportion. the costs as asked. This particular provision of the statute has never been construed. Suppose plaintiff had recovered against one only of the seven alleged wrongdoers, on appellant’s construction of the statute he would only be entitled to a judgment for one-seventh of the costs as against him, although plaintiff had been successful in his action. Surely no construction should be placed upon the statute which would work such an inequitable result, unless its wording requires it, or such was the manifest intent of the legislature in its enactment. We see no reason for so construing it. These seven parties were charged with having commmittce a wrong against the plaintiff. The jury found that as to six of them the charge was established, but the seventh man was not liable. Why should the latter fact operate. to relieve the other six from the payment of one-seventh of the costs incurred in the action brought against them all for one cause, and to which all of the seven made a joint defense? The six are in no way prejudiced by the fact that as against a Seventh defendant there was no recovery had, except possibly by being required to pay costs which were made only in prosecuting the case as against the seventh man. What portion of the costs were thus made, if any, does not appear. This was not a case coming within this provision of the statute. It was not a case of separate judgments in favor of the plaintiff and against all of the defendants. It was simply a case where several were sued, and a recovery had as to all but one of them, a joint verdict and judgment as against all as to whom plaintiff recovered at all. If separate judgments had been recovered against the parties in different amounts, there might be some reason for claiming that the costs should be apportioned in a proper case. We do not think the statute bears the construction contended for. The motion was properly overruled, and the judgment below is affirmed.
