Feske v. Adam
| Decision Date | 20 June 1907 |
| Citation | 112 N.W. 456,132 Wis. 365 |
| Parties | FESKE v. ADAM. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Polk County; A. J. Vinje, Judge.
Ejectment by Fred Feske, as special administrator of the estate of Emil Feske, deceased, against Julius Adam. From a judgment for defendant and an order retaxing costs, he appeals. Affirmed.
Action in ejectment.
The action was dismissed with costs on motion of counsel for the defendant. There was a contest before the clerk on the taxation of costs, the result being carried before the court for review, where a decision was rendered adverse to the appellant and the costs as so taxed were inserted in the judgment. This appeal was taken solely for the purpose of having such decision reviewed. There is no bill of exceptions. The appeal is from the order retaxing the costs as well as from the judgment.Frank B. Dorothy, for appellant.
W. T. Kennedy, for respondent.
The order retaxing the costs is not appealable. That is ruled by many decisions under the present appeal statute, upon the ground that it did not prevent a judgment from which an appeal might be taken, but independently thereof it would not be appealable because a retaxation of costs is not a special proceeding nor a summary application after judgment, nor a matter involving the merits. Ernst v. The Steamer Brooklyn, 24 Wis. 616. Such an order is only reviewable on appeal from the judgment.
The point is made that there being no bill of exceptions neither the proceedings before the clerk nor those before the court are a part of the record and so are not reviewable upon appeal from the judgment. That must be decided in respondent's favor under the doctrine of Cord v. Southwell, 15 Wis. 211; Channing v. Davis, 16 Wis. 470;Hoey v. Pierron, 67 Wis. 262-268, 30 N. W. 692;State v. Wertzel, 84 Wis. 344-347, 54 N. W. 579;Lauterbach v. Netzo, 111 Wis. 322, 87 N. W. 230; and other cases. The rule is thus stated in the headnote to Channing v. Davis, supra: for the purpose of reviewing an erroneous taxation of costs “a bill of exceptions is necessary, showing what occurred before the court and taxing officer, the items objected to, and what decision was made thereon.”
The judgment is affirmed.
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City of Milwaukee v. Leschke
...application after judgment, nor a matter involving the merits. Mash v. Bloom (1907), 133 Wis. 662, 663, 114 N.W. 99; Feske v. Adam (1907), 132 Wis. 365, 366, 122 N.W. 456; Smith v. Shawano County, et al. (1890), 77 Wis. 672, 674, 47 N.W. 95. Such an order has been held to be reviewable only......
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Mash v. Bloom
...v. Steamer Brooklyn, 24 Wis. 616;McHugh v. Chicago & N. W. R. Co., 41 Wis. 79;Hoey et al. v. Pierron, 67 Wis. 262, 30 N. W. 692;Feske v. Adam (Wis.) 112 N. W. 456. A judgment having been rendered without costs, the question of whether the defendant was entitled to costs could only be raised......
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