State v. Reesa
| Decision Date | 04 April 1883 |
| Citation | 15 N.W. 383,57 Wis. 422 |
| Parties | STATE OF WISCONSIN v. REESA. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Walworth county.Edward H. Sprague, for appellant, the State of Wisconsin.
Fish & Dodge and E. Merton, for respondent, Bernard Reesa.
This is an appeal from an order of the circuit court denying costs to the plaintiff. The action was brought to recover the penalty for an obstruction of a highway. The cause was tried without a jury in February, 1882. The court took time to consider, and made its findings, and ordered judgment in favor of the plaintiff for $10 penalty and costs. The findings bear date March 4, 1882, but are indorsed on the back by the clerk as filed August 29, 1882. On the day last named judgment was actually entered, as of the previous term, in favor of the plaintiff, for $10 and costs of suit. On the sixteenth of September the plaintiff's attorney presented an itemized bill of costs to the clerk for taxation. The clerk wrote in the margin of the bill these words: “I hereby refuse to tax the within bill of costs under chapter 202, Session Laws 1882.” On an appeal the circuit court ratified the action of the clerk in refusing to tax the costs in favor of the plaintiff, and denied the motion for a direction to the clerk to proceed and tax the costs.
In this court the objection is taken that the order is not appealable. The point, we think, is not well taken. The order refusing to tax the costs surely affects a substantial right, and prevents a judgment from which an appeal might be taken. It was decided in Smith v. Hart, 44 Wis. 230, that a judgment was not perfected, so as to be appealable, until the costs were taxed and inserted therein; and the same ruling has in effect been made in other cases. So the order must be held appealable. But it is said by defendants' counsel that there is nothing in the record to show that the court erred in refusing to tax the costs in favor of the plaintiff. This position is based upon chapter 202, Laws 1882. By that statute it is made the duty of the successful party to enter and perfect the judgment upon the finding or verdict within 60 days after the filing of such finding or the rendition of such verdict. In case the successful party neglects to perfect the judgment within that time, it is made the duty of the clerk to prepare and enter the proper judgment, but without costs to either party; and the neglect or failure of the successful party to enter and perfect the judgment as therein prescribed, is to be deemed a waiver of his right to the accrued costs in the action.
Now it is insisted by the same counsel that there is nothing to show when the findings were made and filed with the clerk, and that the presumption is the court performed its duty by making its decision in writing and filing the same with the clerk within...
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