Dean v. Williams

| Wis. | Jan 15, 1849

Stow, C. J.

This case has been submitted without argument or brief. Had we been aware, at the time the papers were handed up, that they were not accompanied with a brief, we should have declined receiving them ; as we cannot, as a general tMng, consent to take upon ourselves to examine and decide cases in this court, on a mere inspection of the record.

By the record, it appears that at the September term of the district court, 1847, and after one trial had been had, the defendants below (the plaintiffs here) applied for and obtained leave to amend their pleadings, which they did j and that at the following May term, a rule for judgment was obtained by the plaintiff below, for the costs incurred between the, filing of the defective pleas, at the October term, 1846, and the amendment, a year afterwards. The errors assigned are :

1st. The court awarding costs, in May, 1848, of the amendment allowed in September, 1847, when the rule for that amendment expressed no terms on wMch it was to be made: and,

2d. The giving judgment for these costs.

In regard to the first alleged errror, it is to be observed, that though, in general, costs do not follow interlocutory orders, unless expressly awarded, but abide the event; by the standing rule of tbe late district courts, tbe amendment could be made only on the terms of paying the intervening costs. This rule, while in force, was as operative and obligatory as a statutory provision; and the party availing himself of it could exonerate himself of its burthens, only by an express exception in his favor. We are, therefore, of opinion that the district court was right in awarding the costs it did. As to the second error assigned, it does not appear from the record that a judgment for the costs was, in point of fact, "■ ever actually entered ; and a mere rule for judgment is not a judgment, and error will not lie upon it; besides, it is very questionable whether error lies to reverse a judgment for costs-alone. And for this reason (and without expressing any opinion on the subject whether a judgment was the proper method of securing the payment of the costs awarded) the writ of error is dismissed.