Ballou v. Chicago & Northwestern Railway Co., 53 Wis. 150

53 Wis. 150 | Wis. | 1881

Lyon, J.

1. The only power of the elerk of the court to tax and adjust eosts is that conferred upon him by statute. Section 2927, R. S., authorizes the elerk to tax the costs and insert the amount thereof in the entry of judgment, on the application of the prevailing party. We find no statute which authorizes him to do so on the application of the party against, whom the judgment goes. We are clearly of the opinion that in this case the learned attorney for the plaintiff has-mistaken his remedy. We understand the correct practice in such cases is, that if the prevailing party neglects to perfect his judgment after having been requested to perfect it, the court, on motion, will compel Mm to do so, and will impose costs upon Mm unless the delay be satisfactorily explained. This is the practice indicated in the New York cases cited in support of this motion. We have been referred to no authority which sanctions the practice adopted in the present case. If the prevailing party should neglect to perfect his judgment within the time limited therefor by the court, doubtless the court might properly direct final judgment to be entered without costs.

The clerk having no authority to tax the costs on application of the losing party, the taxation, and the insertion in the judgment of the amount of costs as taxed, are null and void, and have no more effect than the same acts would have if done by a private person. They are simply - nullities. The judgment, therefore, is still imperfect, in that the costs have not been adjusted and inserted in it; and until those things are done, no appeal lies from the judgment. Smith v. Hart, 44 Wis., 230, and cases cited. It follows that the motion to dismiss the appeal must be granted.

2. In Am. Button-Hole Co. v. Gurnee, 38 Wis., 533, and perhaps in other cases, it was held that an appeal would be dismissed for duplicity in the notice of appeal, although double only in form. We are now satisfied that this rule is unnecessarily technical and harsh, and should be modified. The court takes this occasion to announce that hereafter no appeal will be dismissed for duplicity unless it is double in fact; that is to say, unless it includes two appealable matters. For example, an appeal in form from a judgment and an order in the action, made before judgment (which is not appealable after judgment), or from two orders, one of which is appealable and the other is not, will be held not double. But an appeal from two judgments, or from two appealable orders, or from a judgment and an appealable order made after judgment, will be held double. Applying this rule to the present case, the appeal is not double. It is believed that the rule here announced will afford all just protection to respondents, and at the same time will avoid the danger which existed under the former rule of inflicting injustice npon appellants. At the same time the new rule subordinates mere form to substance — a result always most desirable in judicial procedure when it can he attained without danger of injustice.

By the Court. — • Appeal dismissed.