35 Wis. 608 | Wis. | 1874
The first exception relied on for a reversal of the judgment of the circuit court is the one taken to the refusal of the court to quash the writ of certiorari. It is insisted that the writ should have been quashed because of the insufficiency of the affidavit upon which it was granted. The specific objection taken to the affidavit is, that many of the material facts are stated upon information and belief merely, and not positively as they should have been. We think the objection was very properly disregarded. There is surely enough stated in the affidavits to show that the justice exceeded his jurisdiction in the taxation of costs; for, upon the facts set forth, it seems that the justice neglected and failed to tax the costs within a reasonable time after the verdict was rendered. This showed an excess of jurisdiction on the part of the justice, and authorized the issuing of the writ. The further objection that the court erred in granting the rule upon the justice to make further returns to the writ, upon the suggestion on the record, or on the affidavit and motion, that the original return was defective and did not fully show all the proceedings had before him in the cause, seems to us too obviously untenable to require any particular notice.
Considering the various returns made by the justice to the writ, we think the circuit court was clearly right in reversing the judgment of the justice so far as costs were concerned. Eor by no admissible construction of the statute can it be maintained that the justice had authority to tax the costs and enter the amount thereof in the judgment at the time it appears he taxed them. He had then lost all jurisdiction of the cause, and could not then either tax the costs or correct any error in the taxation previously made.
The justice returns, in substance, that on the receipt of the verdict he immediately rendered judgment in the action for
There is much in this case which tends to support the inference that the justice first gave a judgment for costs which included illegal items, and that he afterwards changed the taxation. We cannot absolutely assume, upon the returns of the justice, that this was done. If the justice did in fact include illegal items in the first taxation, as stated in the affidavit for
By the Court. — The judgment of the circuit court is affirmed.