55 Wis. 202 | Wis. | 1882
By the authority of the district attorney of Jefferson county, a suit was instituted in the name of the
It is elementary that in actions at law costs are the creature of the statute, and are not recoverable without the authority of positive law. The liability of a municipal corporation like a county or town must rest upon strict legal right. It forms the basis of taxation, and must have clear legal warrant. Fernandez v. County of Winnebago, 53 Wis., 247. The interest of a town in keeping highways in repair is altogether too remote to imply any such legal liability. It is made the express duty of the overseer of the proper district to cause ■such obstruction to be immediately removed. On the ground ■of liability arising from neglect of duty in respect to such obstructions, the overseer would seem to have a more direct interest than the town itself; and if by any such implication
The case of Ives v. Supervisors of Jefferson County, 18 Wis., 166, the only case cited by the learned counsel of the respondent in this court as authority for holding the town liable for these costs, is closely analogous to this case, and the county is held not liable for costs similarly incurred, because there is no statute making counties liable for costs in such cases. It is barely intimated that the town in that case might perhaps be liable because the penalty to be recovered was to go to the town. Rut the penalty in this case does not go to the town. It is a familiar principle that when a suit is brought in the name of a relator, or a nominal party having no interest whatever nor made liable for costs by the statute, on behalf of a person or a corporation having the entire interest, and for whose exclusive, benefit the suit is-brought, such party in interest will be liable for costs. Te tbis effect are Colvard v. Oliver, 7 Wend., 497; Jones v. State, 5 Blackf., 141; and Sebrell v. Fall Creek Township, 27 Ind., 86,— cases cited by the learned counsel for the respondent.. In this last case the action was to recover the penalty for obstructing a highway, and the township was held liable for costs, only because, by the statute of that state, the penalty is to be paid to the township trustees, and that state has a general statute establishing the above principle, that costs, shall be taxed to the party in interest for whose benefit the-action is brought.
It is significant that in the revision the same principle is adopted in section 3297, R. S., as a new provision, that, in cases where the action is brought in the name of the state for a forfeiture which is payable to some party other than the state, such party shall pay costs. So, also, is section-3303, R. S., a new provision, which makes towns, cities and villages liable for costs when the forfeiture belongs to such towns, cities and villages, by authorizing them to sue for the,
The objection to any evidence under the complaint should have been sustained.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to dismiss the ■complaint..