Kirst v. Wells

Lyon, J. It is conceded that the complaint states a cause of action, and the only grounds upon which the regularity of the judgment for damages is questioned, are these: first, that, although the demurrer had been overruled, no judgment could regularly be entered without the order of the court; and second, that the complaint is not properly verified, and hence that the clerk had no authority to enter the judgment without an assessment of damages, of which five days’ notice should have been given to the defendant’s attorney. R. S. 1858, ch. 132, sec. 27. No such notice was given. When the judgment was entered, the demurrer had been disposed of, and was no impediment to the entry thereof. There was an appearance by the defendant, but no answer, and more than twenty days had elapsed after personal service of the summons and complaint. If, therefore, the complaint was duly verified, the case is within the provisions of R. S. 1858, ch. 132, sec. 27 (Tay. Stats., 1501, § 32), and the clerk was authorized to enter judgment against the defendant for the amount named in the summons; and this without notice, for in such a case an assessment of damages is not required. Trumbull v. Peck, 17 Wis., 265. The verification is informal, yet we think it complies substantially with the requirements of the statute. R. S. 1858, ch. 125, sec. 19. The only objection urged against it is, that the attorney who made it states his grounds for believing that the complaint is true, to be “ the admissions of the defendant that said bill is correct, and the said amount due thereon,” when no bill is mentioned in the complaint. . Obviously the bill referred to in the verification means the account for goods upon which the action was brought. The judgment for damages, therefore, is regular; and so the learned counsel must have thought when they moved to vacate that portion of it [59] which awards costs, making no attack upon the award of damages. The portion of the judgment which gives costs to the plaintiffs, cannot be upheld. With certain exceptions not affecting this case, the statute provides, that “ in all actions on contracts, of which justices of the peace have jurisdiction, which shall hereafter be commenced in any court of record, no costs shall be recovered by the party plaintiff,” etc. Laws of 1862, ch. 60 (Tay. Stats., 1531, § 55). This case is within that statute in every respect, and it was error to award costs to the plaintiffs. The rule which requires a party to make objection before the taxing officer to any particular items in a bill of costs, in order to have the objection available on an appeal from the taxation, is not applicable to a case in which no costs can be lawfully taxed. By the Gov/rt. —The judgment of the circuit court is affirmed as to the damages, and reversed as to the costs included therein. We think this a proper case for the exercise of the discretion conferred upon us by R. S., sec. 2949, in respect to the costs in this court, when the judgment appealed from is affirmed in part and reversed in part; and we direct that judgment here go against the respondents for the clerk’s fees alone. Beyond such fees, each party must pay his own costs.