In re Will

53 Wis. 228 | Wis. | 1881

Cassoday, J.

The judgment of the circuit court, affirmed by this court, in terms gave full force and effect to the decision and order of the county court, and remitted to that court the subject matter of the trial, and the whole matter of the estate, together with all papers relating thereto, for further proceedings therein by said county court according to law. By thus expressly sending back «to the county court the entire subject matter of the litigation and the estate, with all the papers relating thereto, and with a mandate to that court to proceed further therein according to law, the circuit court would seem to have divested itself of all further authority over the litigation or the estate. Even if the circuit court had authority to make an extra allowance to the contestant for counsel fees while the matter was pending in that court, yet it would be irregular to do so fourteen months after it had remitted the whole matter of the litigation and the estate to the county court.

Whatever may have been the early rule in England and some of the states, in equity cases, yet the rule seems to have been settled in will cases in this state, for quite a number of years, that the amount of costs recoverable by a party is regulated wholly by statute, and that the only discretion given to the court is as to the party by or to whom the same .shall be paid, and whether out of the fund or estate which is the subject of the controversy, or by the individual. In re Jackman's Will, 26 Wis., 143, 364. That, in effect, is the construction which this court placed upon section 36, ch. 117, R. S. 1858, which read: “In all cases that shall be contested,either in the county court or in the circuit court, such court may award costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.” The provisions of the statutes then existing, as to costs, have been essentially preserved in the late revision.

Section 2918, E. S., tells when costs shall be allowed to the plaintiff of course. Section 2920, E. S., tells when costs shall be allowed to the defendant of course. Section 2921, E. S., states that when costs are allowed they shall be as therein prescribed. Section 2932, E. S., states that costs shall be recovered' in actions prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, as in an action by or against a person prosecuting in his own right, unless otherwise specially provided; but that such costs shall be chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense. After thus regulating the costs to be recovered in all actions in the circuit court, we find, by going back to the last clause of subdivision 7,-sec. 2918, E. S., this general provision: “ But in all equitable actions costs may be allowed or not to any party, in the discretion of the court.” This discretion seems to be limited to allowing or disallowing to a party such costs as the other provisions of the statute prescribe, and not to be a discretion to fix an arbitrary amount according to the trial judge’s notion of justice and equity in the particular case. The substance of the statutes referred to was mostly adopted in the code of this state. Chapter 120, Laws of 1856. By section 214 of that chapter, all statutes “ then existing, establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, were repealed. By section 219 of that chapter, the court was authorized to make an allowance in certain cases, not exceeding ten per cent., in addition to the fee bill prescribed; but that section was soon wiped out by legislative enactment, which showed their intent to have the amount of all costs regulated by statute. Chapter 227, Laws of 1881, was a still further limitation to prevent costs being awarded to an unsuccessful contestant of the will, except in the cases therein named.

It is urged that the order appealed from must be “ considered and treated as an interlocutory order before judgment,” and therefore could be reviewed only on an appeal from the judgment, notwithstanding it was not entered until after the judgment had been once affirmed in this court, and hence was no longer appealable. We are clearly of the opinion that it was appealable. See Johnson v. Curtis, 51 Wis., 595.

By the Court. — ■ That part of the order and decree appealed from is reversed, and the cause is remanded with directions to enter an order in accordance with this opinion.