George v. Everhart

LyoN, J. Before the present revised statutes took effect, actions to enforce liens of mechanics, laborers, and material men were held to be actions at law on contract, although having some of the characteristics of suits in equity, and» hence were subject to the limitations of costs prescribed in R. S. 1858, ch. 133, sec. 41, as amended by ch. 402, Laws of 1864 (Tay. Stats., 1,532, § 59). Marsh v. Fraser, 27 Wis., 596; Tewksbury v. Bronson, 48 Wis., 581. In the latter case it was held that the plaintiff had no right of lien, and he was permitted to amend his complaint so as to demand a personal judgment against the defendants. The action was brought before the present revision took effect, and was therefore an action at law. By reason of the amendment, it continued to be an action at law, notwithstanding the revision, for the lien claim was entirely eliminated therefrom. The limitations above mentioned are as follows: “ In actions at law on contract, the costs, exclusive of disbursements, shall not in any one case exceed $25, and when the sum [399] recovered is less than $200, the same shall not exceed $15.”' These limitations are preserved in the present revision. R. S., Y72, sec. -2921. The present revision (R. S., ch. 143) has made an entire change in this class of actions. They are-no longer legal, but equitable actions,— Willer v. Bergenthal, 50 Wis., 474, — and are subject, with few exceptions, to all the incidents of suits in equity. One of these exceptions,, not mentioned in the case just cited, is that the prevailing-party recovers costs as matter of right, while ordinarily the giving of costs in equitable actions is in the discretion of the court. Weston v. Olson, 55 Wis., 613. This exception, however, does not affect the character of the action. It is still. an action in equity. The precise question here is whether or not the case is affected, in respect to costs, by the enactment of the revised statutes pendente Ute. We think the question must beans wered affirmatively. Sec. 4980, while'it saves the pending action, provides that the subsequent proceedings therein shall conform to the provisions of the revised statutes, when applicable. One of the subsequent proceedings is the taxation of costs, and the taxation must go upon the rule of the statute, which, as we have seen, is full costs to the prevailing party. It is argued that an action, properly commenced as a legal action, cannot be changed by statute into an equitable one. This may be true of an action which at the common law is. a legal action. We do not decide this. Here we have purely a statutory action, and no good reason is suggested why it may not be made a legal or equitable action at the pleasure of the legislature. This class of actions was always very • close to the line which divides legal and equitable suits. The pleadings therein must, or at least may, contain much that pertains to both. It happens in this, case that the complaint contains many, if not all, of the averments essential to a good complaint in equity. If it did not, on objection [400] duly taken the court would, doubtless, have required the plaintiff so to amend his complaint that it should conform to the new statute; that is to say, he would have been required to make a good bill in equity, and the cause would have proceeded as an action in equity. In that case there could be no doubt of the right of the plaintiff to full costs. The fact that the complaint needed no amendment can make no difference. The subject matter of the action was properly cognizable in a court of equity; the complaint is in the form of a bill in equity; and the legislature has provided in effect that the action shall proceed to judgment as an equitable action. The statute affects the remedy only, and we perceive no valid objection against it. Our conclusion is that the court properly awarded full costs to the plaintiff, although he recovered less than $200. By the Court.— Order affirmed.