Wold v. Ordway

68 Wis. 176 | Wis. | 1887

Cassoday, J.

The judgment in the justice’s court, exclusive of costs, was less than $15. This being so, and there being no affidavit of any larger claim, the appeal was necessarily heard on the original papers and the return of the justice. Sec. 3767, R. S. It was so heard. Upon such hearing the court was expressly required, in effect, to give judgment according to the justice of the case, without regard to technical errors or defects which did not affect the merits; and, in giving judgment, to affirm or reverse the judgment of the court below, in whole or in part, either as to damages or costs or both, as to any and all the parties, and for errors of, law or fact. Sec. 3769, R. S. In other words, the jurisdiction upon such an appeal is purely appellate. This has often been determined. Here the judgment in the justice’s court was wholly affirmed, both as to damages and costs,— first on default, and then, after being reopened, again on a rehearing. This being so, the plaintiff was entitled, as a matter of law, to interest on the amount of that judgment from the time of its rendition. The mere fact that the amount of such interest was com-putecl to the time of such affirmance, and recited in the judgment, together with the, total amount of the two combined, with a readjudication that the plaintiff should recover the same, did not make it a new judgment or anything more than a simple affirmance. Upon such af-firmance, the plaintiff was entitled to $10 costs, and all disbursements and officer’s fees. Sec. 2925, R. S. On such affirmance, November 28, 1884, the plaintiff recovered $10 for attorney’s fees, and $10.90 for clerk’s fees and disbursements, making $20.90. The setting aside of the default “ for the reason that the judgment was contrary to stipulation of parties in open court,” was undoubtedly addressed to the sound discretion of the circuit court, and hence no error was committed in allowing the plaintiff, as a condition of granting said motion, $10 costs, and $3.75 sheriff’s fees upon the execution. In the judgment entered after the rehearing, to wit, July 7, 1885, the plaintiff recovered $43.34 for his costs; that is to say, $9.69 more than the aggregate costs recovered in the judgment of November 28, 1884, and the amounts allowed upon the motion. Just what such excess was for does not appear, nor does it appear whether any objection was made to the same in the trial court. Presumptively it was for clerk’s fees on the motions and the rehearing. However that may be, we are not disposed to disturb the judgment merely because the costs were increased that amount, especially as no specific objection appears to have been made thereto in the trial court.

By the Oourt.— The judgment of the circuit court is affirmed.