Opinion of the court by

It is contended by the plaintiff in error, that the court erred in failing to confirm the report of the referee, and rendering judgment in accordance therewith. This contention is not well taken. The judgment of the court shows that at the time the cause came on for hearing on the motion to confirm the report of the referee, and on the objections' and exceptions of the defendant, the cause was submitted, by agreement of the parties, to the court on the evidence taken before the referee, which evidence was fully transeribd and returned with the referee’s report. By submitting the cause, by agreement, on the evidence taken before the referee, the plaintiff waived his motion for judgment on. the findings of the referee, and thereby submitted the cause on the pleadings and the evidence. An examination of the record shows that there was ample evidence to uphold the judgment of the court. And it is the settled doctrine of this court that where there is sufficient evidence to reasonably sustain the judgment and findings of the court, such findings will not be disturbed, although the evidence is conflicting.

*470 It is next contended that the court erred in dividing the costs equally between the parties. There was no error in the taxation of costs, since in an action of this kind the statute confers discretionary power on the court to apportion the costs as it may think right and equitable. Sec. 585 Wilson’s Annotated Code of Civil Procedure.

There being no error in the record, the judgment of the court below is'therefore affirmed.