dissent">Maeshall, J.

(dissenting). With the court’s conclusion ■.that Mrs. Doolittle was not entitled to costs under her un-falsified disclaimer, I cannot concur. It commits the court, ■as I understand it, to this: If a person is brought in as a -mere proper defendant, the circumstances being such that, if he does not defend, no judgment for costs can be rendered against him, and the complaint in addition to allegations .showing his contingent interest, rendering him a proper defendant, contains others, constituting a personal liability re•quiring him to make a separate defense by a separate answer*, and he makes such answer and defense and prevails, he can-mot recover costs, if plaintiff recovers against his codefend-ant. No such ruling has heretofore been made under sec. 2920, Stats. 1898, that covers the subject. No such ruling Iras been made elsewhere under any similar law, so far as I can discover. The history of such law dates back over fifty ■years. I think it has always been assumed, and the practice 'is accordingly, that in the circumstances stated, the- one so required to defend, upon prevailing takes costs. The statute ■reads as follows:

*45“Costs shall be allowed of course to the defendant in the-actions mentioned in the two preceding sections unless the plaintiff be entitled to costs therein, but where there are several defendants not united in interest and making separate-defenses by separate answers, and the plaintiff recovers-against one or more but not all of such defendants, the court may award costs to such of the defendants as have judgment; in their favor or to any of them.”

My brethren give a very strict, and to my mind, an unreasonable construction to the words “unless plaintiff be entitled to costs therein,” and “the plaintiff recovers against one or more of them but not all.” They hold that if plaintiff recovers costs against one defendant he “recovers costs therein,” within the meaning of the statute, and so no defendant;, can have costs. Further, that if plaintiff recovers against a mere nominal defendant incidental to the recovery against the other defendant he “recovers against all,” within the-meaning of the statute, though as to the claim of personal liability against such nominal defendant he is defeated. Ur seems to me that .this is wholly inconsistent with the spirit of' the statute. The legislative purpose seems to be plain that' if one is compelled to defend in an action and his defense is • separate and distinct from that of the other defendant and' he successfully make such separate defense under a separate • answer, he is entitled to costs the same as if he were the sole-defendant. The statute was framed upon the common-law principle that a person who is brought into court and is unjustly compelled to defend he should have costs against his-adversary. Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. The reasonable meaning of the words “unless the-plaintiff be entitled to costs therein” is entitled to costs against the particular defendant in question; and the reasonable call of the words “plaintiff recovers against one or-more but not all” is a recovery legitimately carrying, at least, costs against all.

The controlling idea of the statute is that every party to.*46litigation, who is required to be active either in attack or defense, shall be entitled to costs, or may have costs in the dis•cretion of the court, or be required to pay costs; and that in -case of a defendant, not united with a codefendant, and making a separate defense under a separate answer, the question of costs as to him, shall be determined regardless of that as to any other party to the litigation.

In my judgment there could not have been, in any event, any recovery of costs against Mrs. Doolittle. With that I un■derstand my brethren agree. She was compelled to act in ’her defense. She did so successfully under a separate answer 'by a separate defense. She was entitled to prevail on such -defense. Under such circumstances she was at least entitled 'to have the court exercise its discretion as to whether she •should have costs or not. Of course costs do not follow as a •matter of right under such circumstances. Allis v. Wheeler, 56 N. Y. 50. I think the judgment should be reversed as to .Mrs. Doolittle.

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