Tbe first error assigned is tbe refusal to consider tbe application for a compulsory reference because .a previous motion therefor bad been denied and precluded considering tbe matter again. Tbe claim of appellant’s counsel tbat tbe right to a reference under sec. 2864, Stats. 1898, is absolute must be ruled in favor of tbe respondent, this court having so held on such a proposition in McCormick v. Ketchum, 51 Wis. 323, 8 N. W. 208. Tbe language of tbe •statute “All or any of tbe issues in tbe action . . . may be referred” etc., is permissive. It makes an application for reference a matter addressed to tbe sound discretion of tbe court. Tbe vital word “may” is not used with reference to public rights or interests, or where the public or a third person have a claim de jure tbat the power shall be exercised. So it is not an instance where, by tbe rules of statutory construction, a permissive word should be given tbe mandatory significance of must or shall. Cutler v. Howard, 9 Wis. 309; Market Nat. Bank v. Hogan, 21 Wis. 318; Dutcher v. Dutcher, 39 Wis. 651; Brawley v. Mitchell, 92 Wis. 671, 66 N. W. 799; Sutherland, Statutory Construction, § 462. AATien a permissive word is not so used in a statute it must be taken in its literal sense. Tbe privilege of tbe statute in question is designed for tbe convenience of both tbe court and parties. Manifestly in some circumstances it would be so helpful in discovering and pointing out definitely tbe truth of a controversy, tbat a denial thereof would be an abuse of discretion, but in many, probably in most cases, a reference Is a greater aid to tbe court than to tbe parties.
Tbe ruling idea with tbe learned circuit judge in denying tbe application for a reference, tbat tbe previous decision in tbe case precluded doing otherwise, is manifestly wrong. 'This court established a different doctrine, in Hackett v.
It follows that it was the duty of the court to exercise its-discretion in respect to the second motion for a reference,, by looking into the subject anew, or deciding the matter without doing so because of the improbability of a different result being reached. Probably the former course should have been pursued, under the circumstances of this case, since the second motion was. made before a different judge than the first,, the former having been called in to hear the case because of alleged prejudice of the one who presided when the first motion was made. - The denial of the first motion may have been one of the occurrences which led to the belief that the-first judge was prejudiced.
The learned counsel for the respondent insists that, conceding the law to be as before stated, it should not work a reversal because the motion was properly decided, or if not, no prejudicial error in denying it was committed. On that proposition this court has ruled the other way. In numerous instances it has been held that the refusal of the trial court to exercise its judicial discretion where, by the law, such exercise is required, constitutes reversible error upon appeal by the
Eurther complaint is made because the respondent was per mitted to support his claim as to the expenditure of various sums of money, aggregating $104.72, by his own testimony, though having no present remembrance of the items and depending solely upon a copy of the account kept by him on appellant’s books, which had been turned over to the latter. Appellant’s counsel argue that the paper did not satisfy any of the rules as regards a memorandum a witness may use to' refresh his recollection. Respondent’s counsel in offering the' evidence probably had in mind the rule discussed and elucidated in Bourda v. Jones, 110 Wis. 52, 85 N. W. 671, and Nehrling v. Herold Co. 112 Wis. 558, 88 N. W. 614, and mentioned as elementary in Jones, Evidence, § 886. It may be stated thus: If a witness has no present recollection of a matter as to which he is called to give evidence, either independently of or with reference to a memorandum made by him, or by another and found by him on a verification thereof to be correct, but is possessed of a memorandum which he testifies he made and then knew that it was according to the f acts,, or was made by another and subsequently by him verified and found to be correct, when he had knowledge of the facts, so that he is able by a present reference to the paper to testify to the truth of the matter by relation to his former knowledge, he may properly so testify, and the paper itself may properly, be received in evidence, not as an independent evidentiary instrument, but as a part of the witness’s testimony. Prob ábly the learned court admitted the evidence in question, having some impression in respect to such rule. It is a very beneficial rule when properly administered. However, it may be used in a such a way as to be very dangerous by permitting evidence hardly rising above the dignity of hearsay. In passing upon the competency of a witness to testify, where
Error is assigned because the court permitted respondent to give testimony as to his remaining in camp until a specified time by order of appellant by letter, though the letter was not produced, nor any excuse given for its nonproduction. 'That was error.
Further complaint is made because the court ruled that the counterclaim on the judgment indebtedness could not be
Further error is assigned because the court charged the jury in these words:
“If you are of the opinion from the evidence that any witness has wilfully sworn falsely as to any matter or thing material to the issues i in this case then you are at liberty to disregard the entire testimony of such witness, except in so far as you may find it corroborated by the testimony of any other-witness.”
The use of the term “any other witness” rendered the instructions fatally defective under the decision in F. Dohmen Co. v. Niagara F. Ins. Co. 96 Wis. 38-51, 71 N. W. 69. The true rule as therein indicated is that, in the contingency mentioned, the jury may disregard the entire evidence of a witness not corroborated by some credible evidence. Allen v. Murray, 87 Wis. 41-46, 51 N. W. 979; Mercer v. Wright, 3 Wis. 645; Patnode v. Westenhaver, 114 Wis. 460, 90 N. W. 467.
Further complaint is made that the court refused to hold the verdict perverse because $163.04 was awarded plaintiff thereby, though the jury was instructed that the evidence and admissions would only warrant $131.94. If we were to view these circumstances as the learned counsel for the defendant does, the assignment of error would appear clearly well taken. They suggest that since it was established by the evidence, and admitted upon the trial, that errors were made by the plaintiff in keeping the books, to his own prejudice to the extent of $31.20, which the court directed should be deducted from the $163.04 found by the verdict, the jury might have
Finally complaint is made because the court allowed an item of $275, for sheriff’s fees as to attached property, to be added to the judgment more than sixty days after the date ■thereof. It is claimed that such circumstance was not permissible under sec. 2894a, Stats. 1898, which provides that:
“Whenever a finding shall be filed or a verdict rendered 'the successful party shall perfect the judgment and cause it ■.to be entered thereon within sixty days after such filing or*655 rendition, and if be neglect or fail so to do tbe clerk of tbe court shall prepare and enter tbe proper judgment, but without costs to either party. Tbe neglect or failure of such party to so perfect and enter judgment shall be deemed a waiver of bis right to tbe accrued costs in tbe action.”
This section contains some further provisions with reference to tbe extension of time for taxing tbe costs, not material to this case. The facts here are that sheriff’s fees to tbe amount of $275, claimed for taking care of attached property, were formally taxed by tbe clerk with tbe general taxation of costs and judgment was fully perfected within sixty days from tbe date thereof. Such fees, however, were not strictly taxable when allowed because not passed upon by tbe court, under sec. 731, subd. 25, Stats. 1898. On a motion for tbe retaxation of costs such fees were disallowed upon that ground, but with leave to subsequently move tbe court in tbe matter. Such motion was promptly made and within sixty days from tbe date of tbe judgment. Tbe bearing was continued by stipulation until some time after tbe expiration of such sixty days, when it was beard, and tbe amount originally taxed allowed and inserted in tbe judgment. Doubtless upon tbe motion for a retaxation of costs tbe court might properly have passed upon tbe sheriff’s claim,' instead of obliging respondent to specially move in tbe matter. Tbe fact tba-t the clerk did not formally tax tbe item after tbe amount thereof was fixed by tbe court, if error at all, was not prejudicial •error. Tbe fact that tbe ultimate allowance of costs was at a time subsequent to tbe expiration of sixty days from tbe date of the judgment is of no significance, since sec. 2894a was fully satisfied by tbe judgment having once been perfected within that period. Proceedings for a retaxation of costs, ufter tbe sixty-day limit, resulting in a change in tbe judgment by reducing or increasing tbe costs are not affected by such section, as this court decided in Ritter v. Ritter, 100 Wis. 468, 76 N. W. 347.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.