Massing v. Ames

Cole, J. On the payment of the general tax for 1871, the circuit court entered a judgment enjoining the collection of all the special or local taxes mentioned in the complaint, but without costs to either party. The plaintiff has appealed from so much of the judgment as denied her costs. It is now claimed that the plaintiff was entitled to recover costs, upon two grounds. First, it is said that under the decision of this court on the former appeal, costs should be awarded the plaintiff. It was certainly not the intention of this court to give any direction in respect to payment of costs, and its order should not be so construed. The only direction which this court gave was, that the circuit court grant the relief asked upon the plaintiff’s paying the general tax of 1871. But the question of costs was not even considered in our consultation upon' the case; and consequently the matter of refusing or awarding them to either party was subject to the control of the court below. Secondly, it is insisted that as the plaintiff was the prevailing party in t"he litigation, upon general principles which govern courts of equity as well as courts of law, she was entitled to recover costs. In equitable actions, doubtless, the general rule is to allow costs to the prevailing party. But there are exceptions to this rule, as an examination of the authorities will show. Mr. Justice Woodbury remarks in Hunter v. The Town of Marlboro, 2 Woodb. & M., 168 (206-7) — a case cited by plaintiff’s counsel as containing a full consideration of this question of costs, — that the rule at law to allow costs to the .successful party is not universal, and that in equity the departures from the general rule are more frequent than at law, and extend to several classes of cases. It is true, he observes that the inclination in equity causes should be, in his opinion, to conform to [288] the standard established at law, unless in extreme or strong cases. But the learned judge cites cases which show that costs may be given to neither party, or some to one and some to the other, or all to one side, according to the circumstances of the particular case and the situation and conduct of the parties. And it is certain that courts of equity do not adhere as inflexibly to the rule of giving costs to the successful party as courts at law, but exercise a sound judicial discretion on the subject. In this court there are some decisions which lay down the rule, that where both parties have claimed too much, a court of equity may properly refuse to award costs to either party. Green v. Westcott, 13 Wis., 606; Reed v. Jones, 15 id., 41. The circuit court doubtless acted in view of that rule in the ¡Mesen t case. • The plaintiff claimed relief against the payment of both the general tax of 1871 and the special taxes mentioned in the complaint. And while it was held that she had established her right to relief in respect to the special taxes, she was required to pay the general tax as a condition to having the relief to which she was entitled. It is true, the special taxes largely exceeded in amount the general tax; but still this feature of the case is not controlling. And under all the circumstances we are not disposed to interfere with the judgment of the circuit court in respect to costs. For under our practice courts of equity have exercised some discretion upon the subject, and no inflexible rule has been adopted. We do not feel called upon to notice in detail the cases cited by plaintiff’s counsel. The case is not unlike those of Green v. Wescott and Reed v. Jones, where the question of costs was considered, and we adhere to the rule there laid down. See also Smith v. Smith, 34 Wis., 320. It follows from these views that the portion of the judgment appealed from must be affirmed.'- By the Court. ■ — -Judgment affirmed. RrAN, C. J., took no part in the decision of this cause.