Mash v. Bloom

• Decision Date: 13 December 1907
• Citation: 114 N.W. 99,133 Wis. 662
• Parties: MASH v. BLOOM.
• Court: Wisconsin Supreme Court

133 Wis. 662

114 N.W. 99

MASH

v.BLOOM.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Rebecca M. Mash against George F. Bloom. Judgment dismissing the complaint, and, from an order denying defendant's motion for costs, he appeals. Appeal dismissed.

See 110 N. W. 268.

This action was brought in equity to quiet title. The defendant demurred to the complaint on the following grounds: (1) That the court had no jurisdiction of the subject-matter, for the reason that plaintiff had a complete remedy at law; (2) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant permitted to answer upon payment of $10 costs. The defendant paid the costs and answered, and upon the trial amended his answer, alleging that plaintiff had a full and complete remedy at law, that the action was at law, and not in equity. The action then proceeded to trial and resulted in a judgment in favor of the plaintiff, from which judgment the defendant appealed to this court, where the judgment was reversed. Mash v. Bloom, 130 Wis. 366, 110 N. W. 203, 268. Upon filing the remittitur in the circuit court, the plaintiff moved for a dismissal of the complaint, and the defendant moved for judgment, with costs. The court awarded judgment dismissing the complaint, but denied defendant's motion for costs. This is an appeal from the order denying costs.Tenney, Hall & Tenney, for appellant.

Frank E. Parkinson, for respondent.

KERWIN, J. (after stating the facts as above).

The first and only question to be considered is whether the order is appealable. The order appealed from shows that judgment was rendered without costs. We think it very clear under the repeated decisions of this court that an order denying costs is not appealable. Ernst 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 by an appeal from the judgment. The order appealed from does not determine the action, or prevent a judgment from which an appeal might be taken. The defendant could have appealed from the judgment and reviewed the order denying costs, and, if necessary, settled a bill of exceptions showing the proceedings resulting in a judgment dismissing the action without costs. Cord v. Southwell, 15 Wis. 211;...