State ex rel. Fuchs v. Haines

Collins, J. Writs of certiorari to a justice of the peace. From the returns made thereto by the justice, it appears that from an order laying out and establishing a highway, made by town supervisors, certain parties — -landowners—took separate appeals, as authorized by 1878 G-. S. ch. 13, § 59, solely in relation to the damages awarded. Juries were duly summoned, and hearings had. By the returns made by the juries, the damages allowed in each case were largely increased. Thereupon, the justice entered separate judgments in favor of the appellants (calling them plaintiffs) for the amounts awarded to each as damages; for his own fees; for constable, witness, and for jurors’ fees; also, an item for hall rent. Each of these various items was distinctly stated, so that in each of these judgments the amounts awarded to these appellants as damages clearly appeared distinct from the items of costs. The justice also filed the returns of the juries in the office of the town clerk. 1. It is claimed by the counsel for the relators (supervisors) that the justice erred when including the amounts assessed as damages in his judgments. Whatever may be said about the rendition of a judgment for costs in such a case, we think it plain that the amount awarded as damages to the landowner should not be made a part of the judgment. By 1878 G-. S. ch. 13, § 61, it is provided that the return of the jury shall be filed with the town clerk, and thereupon (section 63) town orders are to be issued precisely as if no appeal had been taken. The propriety of this course of procedure, and that it is the most orderly, is evident. 2. The point is made that the justice had no power to include in his bill of costs the amount taxed for hall rent. We are not informed as to why such an item was included, but obviously the statute does not permit it. It was error to charge this amount to the unsuccessful party. 3. There is nothing in the third assignment of error. 4. The respondent justice of the peace will amend and correct each of the judgments by reducing the same in the amounts mentioned as for damages and for hall rent, and the judgments, as thus amended, are hereby affirmed. No statutory costs will be allowed in this court to the prevailing party. (Opinion published 59 N. W. 976.)