There can be no doubt that the judgment was improperly entered in this case, and should have been set aside. Yates v. French et al., 25 Wis. 601. The answer to the original complaint constituted a defense as to several of the causes, of action ; and in respect to those it was a sufficient answer to the amended complaint, and formed an issue. It was irregular, therefore, to take judgment as upon default.

It is claimed that, on account of the matters stated in the affidavit of the attorney for the respondent, if the order appealed from is reversed, it should be without costs. The appeal statute (chap. 264, Laws of I860)' gives this court no discretion over the matter of costs in actions of this character. “ The party prevailing” here is entitled to costs. This is the express language of that statute. Sec. 36. We have held that the law was mandatory, and gave “ the prevailing party ” costs, except where different provision is made by law. Paine v. Chase, 14 Wis. 653.

The order of the circuit court must therefore be reversed, with costs, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.