#### Hartwig, Appellant, vs. Eliason, Respondent.

*October 27*

November *14, 1916.*

*Costs: Allowance: “Recovery:’’ Statutes construed: Libel and slander: Counterclaim: Offsetting damages.*

1. Tire word “recovery” as used in sec. 2918, Stats., — providing that costs shall be allowed to the plaintiff upon a recovery in specified actions, — refers to the judgment in the action, not to the verdict.

2. Under secs. 2859, 2861, Stats., where a counterclaim is interposed in an action for money damages, 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.

3. Thus, in an action for slander, where defendant counterclaimed • for libel and the jury found both the slander and the libel and assessed the damages of each party at six ceirts, the court properly offset the damages and rendered judgment for defendant for full costs, under sec. 2920, Stats., there being in such case no recovery by plaintiff within the meaning of sec. 2918.

Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BuRNell, Circuit Judge.

*Affirmed.*

Eor tbe appellant there was a brief by *James F. Trottman,*of counsel, and *Gustav*Buchheit, attorney, and oral argument by *Mr. Trottman.*

Eor tbe respondent tbe cause was submitted on tbe brief of *Wilbur E. Hurlbut.*

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 *332construction 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.