Selz v. First National Bank of Fort Atkinson

Oassoday, J. The remarks of Mr. Justice Tayloe on the former appeal, as to the trial court allowing the garnishee costs on its motion to dismiss made in June, 1881, had reference to what might have been allowed on the determination of that motion and incorporated into the judgment then entered. Having failed to then obtain such allowance 248 and incorporate the same into such judgment, the court was without power two years afterwards to supply the omission. Loomis v. Rice, 37 Wis., 262; Latimer v. Morrain, 43 Wis., 107; Schobacker v. Germantown F. M. Lns. Co., 59 Wis., 86, and cases there cited. Especially is this so where the order for costs is made after the filing of the remittitur from this court (In re Carroll's Will, 53 Wis., 228), and after the judgment of the trial court has been reversed, and the proceeding or action has been discontinued, and the costs required by statute on such discontinuances have been paid and received, as here. The same is true with respect to the $7.05 clerk’s fees, even had the garnishee voluntarily paid them, which is not claimed. Of course the plaintiffs are liable to the clerk for his fees. It is urged that the order is not appealable. But it was not made until after judgment, and after the filing of the remittitur from this court, and is clearly appealable. Johnson v. Curtis, 51 Wis., 595; In re Carroll's Will, 53 Wis., 234; In re Orton, 54 Wis., 379; Evans v. St. P. F. & M. Ins. Co., 54 Wis., 522. By the Cotort.— The order of the circuit court is reversed.