115 Wis. 207 | Wis. | 1902
The plaintiff urges the following objections to the validity of the order appealed from: (1) That the court had no jurisdiction to grant a new trial upon the issue made by the counterclaim. (2) The defendant did not give the undertaking required by law. (3) The defendant failed to pay interest on the costs recovered by the judgment.
2. We find no difficulty with tbe undertaking given by defendant. It complies with substantial certainty with tbe requirements of sec. 3092. Tbe condition recited, that, if a new trial is granted on all tbe issues, tbe parties undertaking to pay, etc., does not lessen tbe obligation to pay when tbe new trial is in fact granted.
3. Tbe judgment was entered April 23, 1901, tbe costs being taxed at $121.75. On June 23d thereafter defendants deposited that sum with tbe clerk of tbe circuit court, without interest. The question proposed by plaintiff is whether tbe judgment for costs must be paid with accrued interest. A majority of tbe court are of tbe opinion that where tbe statute says such new trial shall be granted “on condition that all ■costs recovered” by tbe judgment shall be paid it means tbe face of tbe costs, and does not include interest which may accrue from date of rendition of tbe-judgment to time of payment. I confess my inability to agree with this conclusion, and will content myself with a dissent from this proposition.
By the Court. — Tbe order is affirmed.