Cord v. Southwell

By the Court, DixqN, C. J. There being no bill of exceptions, nothing comes up but such papers as properly constitute tbe judgment roll. Tbe evidence upon which tbe judgment, orders and other proceedings were founded, whether documentary or otherwise, does not constitute any part of the judgment roll, and consequently cannot be considered. Reid vs. Case, 14 Wis., 429. Among other papers, the statute declares that the roll shall contain all orders and papers in any way involving the merits and necessarily affecting the judgment. R. S., chap. 182, sec. 34. This, I think, includes the stipulation between the plaintiff and the defendant Harrison, the order for attorney’s fees, and the taxation of costs. It seems clear to me that they are orders and papers necessarily affecting the judgment and involving its merits. The statute declares that upon an appeal from a final judgment, the clerk shall transmit the judgment roll, and that this court may, upon such appeal, review any intermediate order involving the merits and necessarily affecting the judgment. Laws of 1860, chap. 264, secs. 5, 6. I think, therefore, that these papers are here, but that the order and taxation cannot be reviewed, for reasons which I will proceed to state. The twelfth section of the act (chap. 264, Laws of 1860), provides that for the purpose of reviewing orders made before judgment, written exceptions to such orders may be filed within ten days after written notice of them, and that the exceptions with the orders may be incorporated in the bill. This provision is general, and includes all orders, whether they be such as constitute part of the judgmenkroll or not. It was objected that this was not an order made before judgment, and therefore not within the statute. But I do not, think so. It was an order fixing costs to be inserted in the judgment. Costs constitute part of the judgment, and I do not think it can be deemed perfected ■ until they are ascer [216] tained and included; and therefore, though the order may in’fact have been made after the judgment was otherwise complete, yet for the purpose of appeal and review, it must be taken to have been made before. Without this, the parties might be without the means of correcting a most serious grievance, where I am satisfied the legislature intended to provide a remedy. The order cannot be reviewed, because no exceptions were taken to it, and for the further reason that it purports to be founded upon a provision contained in the mortgage, which is not before us. We cannot look into the mortgage to see whether it was authorized. The mortgage, or so much of it as was necessary, should have been incorporated in a bill of exceptions, to enable us to examine it. We cannot review the taxation, for the reason that it was not brought to the attention of the court below. Eor that purpose exceptions are necessary, showing what occurred before the court and taxing officer, the items objected to, and the decision of the court thereon. It cannot be tolerated that the party may come here upon appeal from a judgment, and raise his objections to items of costs for the first time. Our business is to review the decisions of courts below upon questions actually made and decided there. Decisions are very numerous and uniform, that objections thus taken will not be entertained. Hoffman v. Skinner, 5 Paige, 526; Beattie v. Qua, 15 Barb., 132; Lyon v. Wilkes, 1 Cow., 591; Cuyler v. Coates, 10 How. Pr. R., 141; Castro v. Illies, 11 Texas, 39; Day v. Berkshire Woollen Co., 1 Gray, 420; People v. Oakes, 1 How. Pr. R., 195. And in most cases the objecting party was likewise required to show, by affidavit or otherwise, that he appeared and opposed the taxation before the taxing offi cer. If he did this, he might then be heard before the court as to the disputed items, upon motion for re-taxation, in the nature of an appeal; else he waived objections. And this I deem to be the true rule upon the subject, that if, after due notice, he fails, without reasonable excuse, to appear be fore the taxing officer, he losps all benefit of objection to any item which might, under any circumstances, be lawfully taxed. The statute provides that the clerk shall insert in the entry of judgment, on the application of the prevailing party, [217] upon two days’ notice to tbe other, tbe sum of tbe charges, for costs, necessary disbursements, and fees of officers ed by law. R. S., chap. 133, sec. 44. This notice must in all cases be given before tbe costs can be taxed and inserted, and if it be omitted, tbe taxation will be set aside for irregularity. 5 Paige, 526. Tbe object of this notice is very evident. It is that tbe opposite party may appear and object, if be desires to do so. If be does not, be assents to all items legally taxable, and tbe court will not afterwards investigate them upon bis motion. This is tbe legitimate result of bis default. But if there be an excess of jurisdiction — if tbe clerk allows items not given by law in any state of case, be will not be concluded by such taxation, but may move tbe court, at tbe earliest opportunity, to correct it, and it will be done. His failure to appear cannot be construed into a consent that costs may be taxed which tbe law, under no circumstances, allows. This may have been the fact as to tbe excess of clerk’s fees aboye $10 in this case, but tbe defendant did not move tbe court to set it aside. If be bad done so, and tbe motion been denied, be might, by proper exceptions, have brought tbe question before this court. There is no error apparent on tbe face of tbe judgment. It was not necessary, in order to justify the directions as to tbe manner of selling tbe mortgaged premises, that a foundation should be laid in tbe pleadings. Tbe court might make them upon facts shown at tbe bearing, or by consent of parties. Tbe evidence does not appear, and no presumption can be indulged against tbe validity of tbe judgment. If tbe directions were wrong, it is incumbent on tbe defendant to show them to be so. Besides, it does not appear that be is in the least prejudiced by them. Tbe direction to tbe sheriff to deduct from tbe moneys arising from tbe sale tbe amount of any lien or liens upon tbe mortgaged premises for taxes and assessments, does not authorize him to pay such costs and assessments, or perform any judicial function whatever. Tbe fair and reasonable construction is, that be is to bring tbe moneys thus deducted into court, to be disposed of as tbe judge, after tbe proper examination, shall direct. Judgment affirmed.