50 Wis. 125 | Wis. | 1880
This was an action to recover damages for a trespass upon real estate, and for taking and carrying away machinery, fixtures and personal property found thereon. The damages recovered by the plaintiff were less than $50. He was not, therefore, entitled to recover costs under section 2918, K. S. 1878, unless he brings himself within the provisions of subdivision 1 of said section, by showing that “ a claim of title to real property arose on the proceedings, or was certified by the court to have come in question at the trial.” Subdivision 5 of said section expressly provides that “ in other actions of tort for the recovery of money, the plaintiff can recover costs only when he recovers $50 or more.” And both parties admit that the action in this case comes within the provisions of said last-named subdivision, and can only be taken out of it by showing that it comes also within the provision of subdivision 1, above quoted.
The evidence is not preserved by a bill of exceptions. There is no certificate by the court that a claim of title to real property came in question on the trial, and there is nothing in the special verdict showing that fact. None of the forty-nine questions submitted to the jury in this case, and answered by them, have any relation to the title to the real estate described in the complaint. From what appears from the special verdict it would seem improbable that any such title could have come in question. The verdict shows that Waggoner’s title to the
The only question which could arise under the mortgage would be the right of the mortgagee to enter upon the real estate and remove the property described in the mortgage. That question is not a question of a claim of title to real property, within the meaning of the statute above quoted. The defendants made no claim of title to the realty, but simply claimed the right to enter upon the realty and remove the property described in the mortgage. The proof of the execution of the mortgage was not any evidence 'of title to real estate, and, when the mortgagee had proved her mortgage, it was a question of law whether she had the right to enter upon the real estate of the plaintiff for the purpose of removing the property described in the mortgage. The fact that she claimed the right to enter upon the real estate of the plaintiff to remove the chattels described in her mortgage, did not raise a question or claim of title to real estate, any more than if she had claimed to enter to remove a horse which had
By the Court.— So much of the judgment of the circuit court as gives costs to the plaintiff, is reversed, and the cause is remanded with direction to the circuit court to render judgment in favor of the defendants for their costs of the action.