Duncan v. Erickson

Pinnet, J. A considerable part of the briefs in this case is devoted to a consideration of the conflict of evidence arising out of the testimony of the ten witnesses on the part of the plaintiff and the eight on the part of the defendant. There is sufficient evidence to sustain the finding of the circuit court for the reduced amount of $258.50. It would serve no useful purpose to enter into details. The record in this respect does not present any proper matter for discussion and decision in this court, there being no clear anj decided preponderance of evidence against the finding of the court. 1. The order of reference does not refer to or state any written consent of the parties to the reference to hear, try, and determine the action, nor does the record show any waiver of trial by jury by the defendant by written consent, in person or by attorney, filed with the clerk, or by oral consent in open court entered in the minutes, according t6 sec. 2862, R. S. Sec. 2864 provides that “ all or any of the issues in the action, whether of fact or of law, or both, maybe referred, in the discretion of the court, upon the written consent of the parties;” and in certain enumerated cases, of which this is not one, the court, when the partieá do not consent to a reference, may order it upon application of either party or of its own motion. It does not ap*-pear that the question whether the order of referencé was properly made or not was ever presented to or decideÜ by the court below, unless it can be held that the exception to the findings of the referee, that the referee “ had nd authority or jurisdiction to hear, try, and determine the acl tion,” was sufficient for that purpose, or that the question is presented, by the exception to the finding of the court, that “the reference was a mere arbitration and discontinuance of the action.” The first exception is too vague and general, and it does not point out any specific defect of' authority or jurisdiction, or, if it does, the ruling of the [132] court on it must be accepted as a determination that the proper consent to the reference had been given. The exception to the finding of the court seems to assume that consent to the reference had been given, because it characterizes the reference as “ a mere arbitration and discontinuance of the action,” which could occur only by consent of the parties. It is not claimed that any question was raised in respect to .the reference until after the trial, lasting six days, had resulted adversely to the defendant, and even then it is attempted to be raised in a manner quite as well calculated -to conceal as to disclose the real objection, now made for the first time so far as we can see, that the cause was referred without the written consent of the defendant. The presumption is that the order was made upon proper written consent, and error in this respect, the court having jurisdiction of the parties and of the action, is not to be presumed. If the defendant had any ground for the objection he now makes, he should have presented it seasonably and in a clear, explicit manner to the court below, with proof of the facts relied on to support it, so that the record of the trial court would present some point for review in this court. There is nothing in the record which impeaches the correctness of the order. It was not necessary that the order should recite the grounds upon which .it was made, nor does a written consent to refer a cause become technically a part of the record, unless made so by bill Of exceptions. The record being sufficient to sustain the order of reference, and the reference superseding a trial by jury under sec. 2864-, there is no question as to waiver of trial by jury itself, as provided by sec. 2862, which refers only to trials by the court of cases otherwise triable by jury. In the present condition of the record we must hold, as on former occasions where written consent to a reference was required, that, in the absence of something [133] to show to the contrary, the presumption is that the necessary consent was given. Dinsmore v. Smith, 17 Wis. 20; Milwaukee Co. v. Ehlers, 45 Wis. 281; Gilbank v. Stephenson, 31 Wis. 592; Crocker v. Currier, 65 Wis. 662. The case of Littlejohn v. Regents of University, 71 Wis. 437, was a direct appeal from' an order refusing a reference, and it necessarily brought before this court the entire case upon which the reference was applied for. 2. The circuit court erred in refusing to disallow items of costs embraced in the appeal from the taxation of the clerk, and in respect to which the action of the clerk was affirmed by the court. The cost bill, as made up and as finally allowed, is a manifest perversion and abuse of the statute. The case made on appeal from the clerk’s taxation does not show what proofs were made in respect to certain disbursements, and we will notice only the taxation of attorney’s fees. There is allowed for attending the trial before the referee, twelve days; at $3 per day, and then there is allowed for attending the trial before the court, two days, at $6, when no such trial took place and there is nothing to show the duration of the trial before the referee. Sec. 2936 provides that “ no fee shall be taxed for services as having been rendered by any attorney . . . in the prosecution of a cause, unless such service was actually rendered, except when otherwise expressly provided.” There is allowed four term fees, at $8, when the statute limits the allowance to three. Sec. 2921, R. S. There is charged in respect to several papers stated to have been prepared by the plaintiff’s attorney and served, in addition to the drafting at twenty-five cents per folio, the further sum per folio of twelve cents, first for engrossing, second for copy to file, third for copy to serve, and fourth for copy to keep. The statute (sec. 2921) provides an allowance of twenty-five cents “ for drawing all process,” etc., “ and all other necessary entries, pleadings, and proceedings in an [134] action, according to the practice of the court, and for which no special provision is made.” And “for engrossing or copying the same, including all records, writs, returns, pleadings, instruments, and all other writings necessarily inserted, for each folio, twelve cents.” The charge in each case for a copy to file, in addition to the engrossed copy and copy to keep, is not allowable. This occurs in fifteen items, and in eight of these the charge for a copy to serve is also wholly unfounded, two of these being for services required to be performed by the sheriff, and for which he is allowed a specific fee by law, and in the others the papers in question were not required to be served at all ; and, in case of the final judgment, no charge in such an action as this is allowable, except for drawing and engrossing it. The statute regulating costs of attorneys, like any other, should be fairly construed and applied, and it is not intended as a convenient means of extortion or abuse. The result is that the judgment of the circuit court as to the. damages is correct and should be affirmed, but as to the costs it is erroneous and must be reversed; and, inasmuch as the erroneous items are scattered throughout the entire bill, we have thought it better to order a retaxation of the costs. Costs in this court will not be allowed to either party. Sec. 2949, R. S.; Reid v. Martin, 77 Wis. 142; S. L. Sheldon Co. v. Mayers, 81 Wis. 621. By the Court.— The judgment of the circuit court as to damages is affirmed, and reversed as to costs, a new taxation whereof is ordered.