Smithbeck v. Larson

18 Wis. 183 | Wis. | 1864

By the Court,

Paine, J.

This action was first tried before a justice of the peace, where the plaintiff recovered a judgment of thirty-one dollars and costs. The defendant appealed to the circuit court, where the plaintiff recovered only four dollars damages. The question is, whether the plaintiff was entitled to full costs in that court. Section 56, chapter 133, provides that “the same costs, fees and disbursements shall be allowed to the successful party in cases of new trial on appeal in the appellate court, as on affirmance or reversal of the judgment.” The decision depends on the meaning of - the words “ the successful party ” in this section. The appellant contends that where the defendant succeeds on the appeal in reducing the judgment appealed from, he ought to be regarded as the successful party. His argument on this point was forcible, and if presented to the legislature might properly lead to the enactment of some specific provisions upon the subject, that would secure more equitable results.

But as the statute now is, we think the words “ successful party ” had reference to the party finally recovering judgment, without reference to the question whether it was more or less than that rendered by the justice. For if this is not so, if the defendant who succeeds in reducing the amount is the successful party, then how much must he reduce it in order to be so considered ? He is successful in reducing it, if he reduces it one dollar. And if the appellant’s argument is consistently applied, he would have to be regarded as the successful party, and entitled to costs against the plaintiff. Yet such a rule would be as obviously unjust as it seems to be to allow the plaintiff full costs where the defendant has succeeded on appeal in reducing a large judgment to a very small one. But between these two extremes the statute has fixed no dividing line, and has not authorized the court to fix any. This seems very evi- • dent from a consideration of the sections immediately preceding the one under consideration. Section 52 provides that “ if the judgment be affirmed, costs shall be awarded to the respondent ; if reversed, costs shall be awarded to the appellant : if it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party. This section shall apply to cases where there is no new trial in the appellate court.” The language of this .section, and of section 55, shows that the legislature had distinctly in view the difference between an affirmance or reversal and an affirmance in part or reversal in part. And it shows that wherever they intended to make a special rule applicable to cases in which both parties might be regarded as partially successful, they used language clearly adequate to that end. Having then made these provisions in respect to cases where there was to be no new trial, they enacted section 56, which assumes that in cases where there is a new trial there is to be only one successful party, and gives him costs as on affirmance or reversal of a judgment, by which, as just shown, they meant an entire af-firmance or reversal. The conclusion seems to us unavoidable, that if they had intended a special rule for cases where the judgment was reduced on a new trial, they would in terms have provided for such a case, or have conferred on the court the same discretion that had just been given in respect to an affirmance in part and reversal in part.

The appellant contended that even if he was wrong in assuming that he was the “ successful party ” so as to be entitled to costs in his favor as of course, still the language of section 56 was sufficient to give the court the discretion just referred to, and allow it to adjust the costs. But we think not, for the reason, as already stated, that this section assumes that there is to be but one successful party, and provides for costs in his favor as of course, as upon an entire affirmance or reversal.

The order is affirmed, with costs.