Weston v. Olsen

Cassoday, J. The only question involved is whether the plaintiffs, as subcontractors, having recovered judgment for the amount named, were entitled to the statutory costs as a matter of right. The statute provides that the judgment in such case shall direct that the interest of the owner of the premises at the time of the commencement of the construction of the building be sold to satisfy the amount of the lien of the plaintiffs, or of the several liens embraced in the action, with the costs of such action, including the costs of filing the claims for lien, and that after satisfying the same, together with such costs, that the residue of the proceeds be brought into court, with the report of sale, to abide the order of the court. Sec. 3324, R. S. A similar provision is found in sec. 3322, R. S. The plaintiffs, as subcontractors, having given the notice required by sec. 3315, R. S., were clearly entitled to judgment. It is true that section provides that the claim of such subcontractor shall not constitute such lien, except so far as such owner shall, at the time of giving such notice, be, or shall thereafter become, indebted to such principal contractor for work done or materials furnished tinder the principal contract.” Here the amount recovered •did not exceed the amount due from the owner to the principal contractor. There is no claim that the owner, on receiving the statutory notice, tendered or expressed any willingness to pay the amount due such principal contractor without suit or otherwise. On the contrary, he denied all liability. By the course pursued by the respondent, the plaintiffs were forced to bring suit and prosecute the same [616] to judgment. Can the respondent now escape from paying the statutory costs thus necessarily incurred by the plaintiffs, by reason of his own action and non-action? Undoubtedly an action to enforce a lien is equitable in its nature. Willer v. Bergenthal, 50 Wis., 474 It is also true that in such actions courts of equity may exercise a certain discretion in withholding or imposing costs. In re Carroll’s Will, 53 Wis., 228; Spruhen v. Stout, 52 Wis., 517. But such discretion should be based upon equitable considerations, and not arbitrarily exercised. Especially is this so in a case like this, where the statute expressly gives costs. Here there was no-' equitable reason for withholding the usual statutory costs,, or making their taxation conditional upon non-payment of the amount found due. On the contrary, the respondent having necessitated the incurring of such costs by the plaintiffs, is, under the statute, equitably bound to pay them. The effect of the garnishment cannot be reviewed on this appeal, and hence its consideration is unnecessary. By the Court.— That portion of the judgment of the circuit court appealed from is reversed, and the cause is remanded for further proceedings according to law