¶1(concurring.)
¶2I concur in the result reversing the judgment. However, I am of the opinion tbat the appellants ought not to have costs. Under the statute (Comp. Laws 1907, section 3344) “costs on appeal are in the discretion of the court (1) when a new trial is ordered,” or (2) “when a judgment is'modified.” At the outset all tbat was involved in this case was the value and right of possession of four common sheep alleged in the complaint to be of the value of six dollars each, and in the answer $3.50 each. the jury, by their verdict, awarded three sheep to the plaintiffs and one to the defendants. the defendants, not to vindicate or have settled any legal principle involved in the case, but to defend a mere pecuniary interest alleged by them to be worth only $10.50, prosecuted this appeal on a transcript consisting of 325 pages, a printed abstract of sixty-four pages and a printed brief of sixteen pages, a cost, including fees, of something like $150. Though the defendants bad the right to prosecute the appeal without any reference to the amount claimed or involved, yet when the amount involved is so greatly disproportionate to the costs, and when compared with them is almost insignificant, it would seem tbat something else besides defending or protecting a mere monetary interest prompted the appeal. the awarding of costs being here discretionary, I think neither party should be given costs.