Akerly v. Vilas

23 Wis. 628 | Wis. | 1869

Pabste, J.

This is a motion to set aside the taxation of costs by the clerk of this court, upon the ground that no notice of taxation was given, and also that costs were taxed for disbursements which ought not to have been.

We can see no objection to the amount of the costs taxed. The case came up on the whole evidence, and it was printed in full. It is true, the rule provides that the printed case shall contain “ a brief abstract of the return of the clerk,” etc. Put this court at an early day dismissed a number of cases in which it became necessary to pass upon questions of fact, because the printed case did not state the evidence fully enough to enable them to do so without examining the original record. And since that time it has been the almost invariable practice to print the entire bill of exceptions, in cases where this court is to review the facts. And it is difficult to see how the court could satisfactorily pass upon such questions upon only a partial statement of the evidence. The printing in this instance was in conformity with the practice that has long prevailed under this rule.

But it appears from the affidavits filed on the motion, that, in making up his printed case on this appeal, the appellant used parts of an old printed case on a former appeal, but for the printing of which he had never before recovered any costs. And he has taxed now only the actual amount paid. '

This circumstance is wholly immaterial. So long as he has only taxed the actual expense of printing the case, which he was required to prepare on this appeal, according to the customary rates, it is of no concern to the other party that he may have procured the printing of some portions of it at a former time and for another purpose. There is no objection whatever to such a practice.

But the taxation was irregular for want of notice to the opposite party. The question of notice of taxation does not seem to be very distinctly determined either- by the statute or rules of court. The only provision I can find in-regard to it is-that in section 44, chapter 133 of the Revised Statutes of 1858. That provides that the clerk shall.insert in the entry of judgment, on the application of the prevailing party, “ upon two days’ notice to the other,” the sum of the charges .for costs, etc., necessary disbursements and fees, of- officers, including the compensation• of referees “and-the expense of printing the papers on any appeal,” etc.

It is undoubtedly true that most.of the provisions of this chapter relate to costs in the lower courts. But the clause in the section just quoted in relation to taxing the expense of “printing papers on any appeal,” it would seem, could have no application except in this court; for it is here only that papers are required to be printed on an appeal. At all events, it is a fundamental principle in law, that no matter shall be decided against a party, in which he is interested, without first giving him ¿notice. And whether there is any statute or rule specifically regulating it, or not, we have concluded to hold, in accordance with this principle, that it is irregular to tax costs before tbe clerk of tbis court without notice to tbe opposite party.

It is true, there is ordinarily not much probability of a contest in respect to tbe costs taxed here. But there may be, and has been in a few instances in regard to tbe disbursements. And tbis shows the necessity of a notice. And we have concluded to apply to tbe taxation of costs in tbis court tbe same rule applied to taxation in tbe circuits in tbe case of Cord v. Southwell, 15 Wis. 216.

We shall bold hereafter that tbe taxation of costs without notice is irregular, and that, if notice is given, tbe taxation will not be reviewed, unless tbe objections are first made before tbe clerk. And in tbe absence of any specific provision in regard to tbe length of tbe notice, it should be a reasonable one.

Tbe motion to set aside tbe taxation in tbis case will be granted. But, as tbe practice has not been specifically provided for either by statute or rule, and as tbe custom has been quite general of taxing costs here without notice, tbe motion will be granted without costs to either party. See concluding remarks of tbe chancellor, in Hoffman v. Skinner, 5 Paige, 526.

By the Court. — Motion granted, without costs to either party.