SUPPLEMENTAL OPINION

A motion to retax the costs accrued in this case has been submitted. The case has been re-examined and it is concluded that the opinion herein be and is modified by eliminating from it the words “all costs of the action in both courts should be and they are taxed to the defendant” and by requiring in lieu thereof that the taxable costs made and accrued subsequent to the filing of the last pleading before the commencement of the first trial of this case in the district court until the dismissal of the appeal to this court by the defendant from the first judgment should be and they are taxed to Gilson James, the plaintiff, and that all other costs of the action in both courts should be and they are taxed to Everett Hogan, the defendant.

Motion to retax costs sustained.