168 Wis. 139 | Wis. | 1918
The question presented is whether the circuit court for Iowa county could lawfully impose upon the defendant Walker costs which were incurred in the county court. The circuit court held that it was without jurisdiction to do so. Orslinarily this would be true, and the only question to be considered is whether the provisions of sec.2836a and sec. 2836b, Stats., change the situation. Those sections were enacted by the legislature in the furtherance of justice and to prevent the dismissal of actions where a plaintiff commenced his action -in a court having no juris
From the provisions, of sec. 2836b it is clearly conceivable that an action brought in a given court of which it has no jurisdiction may be converted into one of which it has jurisdiction, or, if an action be brought of which it has jurisdiction, it may be converted into one of which it has no jurisdiction. It seems to us that it must follow that a court may acquire jurisdiction of the parties even though it has no jurisdiction of the case as originally presented by the pleadings, and while the county court of Iowa county had no jurisdiction of the case as eventually formed by the pleadings it did have jurisdiction of the parties. This certainly
It is to be noted that in cases of mistaken remedy costs are to be awarded against the plaintiff and he is to be allowed a reasonable time in which to amend. . Sec. 2836b. Cases of mistaken jurisdiction, however, fall within the provisions of sec. 2836a. So far as applicable to this case that section simply provides that in all cases in every court where objection to the jurisdiction of that court is sustained by order, judgment, or in any other way, the cause shall be certified to some court having jurisdiction, provided it appear that the error arose from a bona fide mistake and not from design. It is under that clause that this case was certified from the county court to the circuit court for Iowa county. There is no provision in that section requiring the payment of costs as a condition precedent to such certification. The question of costs is to remain open and to abide the final decision in the action. It seems to us that the costs incurred in the county court up to this point are as properly
We do not feel, however, that the judgment should be reversed. An examination of the proposed bill of costs reveals but few very inconsequential items of costs accruing in the county court that could have been taxed against Walker. A defendant who intervenes is not chargeable with costs which accrue prior to the time of his intervention. Williams v. Washington, 43 S. C. 355, 21 S. E. 259; Whitten v. Dabney, 171 Cal. 621, 154 Pac. 312; Railsback v. Patton, 34 Neb. 490, 52 N. W. 277. It will therefore be seen that Walker could not be charged with the state tax, the sheriff’s fees for service of the summons, nor for the draff and copies of the complaint. The only costs with which be could be chargeable would be, probably, for the copy of the complaint, which presumably was served upon
While the respondent Walker did not appeal from the judgment rendered against him, he did give notice, pursuant to sec. 3049a, Stats., that he would ask for a reversal of that part of the judgment which awards costs against him. His contention is that when the case was transferred to the circuit court he withdrew therefrom, and that as no costs may be taxed against him prior to his intervention neither should they be taxed against him after his withdrawal from the case. It should be borne in mind that when the case reached the circuit court Walker asked permission to withdraw from the case. He was denied permission to withdraw from the case, but was permitted to withdraw his answer. He contends that he never became a party to the suit because he never had “leave,” of any court with jurisdiction in the premises, to intervene. We have, however, decided that the county court of Iowa county did have authority to permit him to intervene. This effectually disposes of his contention. Having been permitted to intervene by order of the court, and having filed his answer, he could no more withdraw from the case without the permission of the court, and upon such conditions as thé court might impose, than
By the Court. — Judgment affirmed.