Auerbach v. Masks

Newman, J. It cannot be seriously questioned that the petitions on which the respondent’s motions were based state facts sufficient to warrant the relief sought by the motions. Nor is it doubtful that the evidence amply supports the findings of the referee. So the findings cannot be disturbed on such grounds. Briggs v. Hiles, 87 Wis. 438. Rut the appellant urges that the court erred “ in consolidating the proceedings and referring the issue to a referee.” This is based principally on the contention that the petitions did not state facts sufficient to warrant an intervention, or to furnish grounds for the relief sought. This is, in turn, based chiefly upon the claim or assertion that the contract “shows fraud upon the part of Maries, as against Hecht and the creditors of Hecht.” It is said that the fact, alone, that Marks was to have his choice of goods, at a price to be fixed by himself, is the clearest proof of fraud, as against other creditors of Hecht. Of course, this contention altogether overlooks the fact that Maries did not know that there were other creditors of any considerable amount, but, on the contrary, was assured by Hecht, with Auerbach? s apparent corroboration, that Hecht was entirely solvent, and abundantly able to go on with his business and pay his debts when the obstruction of these executions should be taken out of his way. It is said, too, that this agreement is grossly unequal and unfair on its face, and out of the usual course of business, and should not be enforced. Yery likely the agreement would not be enforced literally, so as to work an injustice, by a court of equity, while, if the respondent should, in good faith, fix fair prices upon the goods .selected by him, that might put another face upon the matter. But that is unimportant. No one is proposing to-enforce it. Maries repudiates it. He claims that the promise was made only to his ear, with the intention that it should be broken to his hope, and that he was in fact beguiled of his levy by its delusion. And so the referee virtually found. [673] No legal or practical objection is perceived to tbe consolidation of the several motions into one. The power to consolidate actions or motions, in a proper case, is inherent in the court, to prevent a multiplicity of actions, to the distress of litigants and the fruitless consumption of the time of the courts. The practical effect of such consolidation is to change the mode of trial or hearing, so that several cases or motions are disposed of by one trial or hearing. It was proper practice to form an issue, and refer it to a referee for trial. The referee’s report was a sufficient basis for a decision of the motion. Cooley v. Gregory, 16 Wis. 303; Williams v. Troop, 17 Wis. 463; McDonald v. Falvey, 18 Wis. 571; Gaynor v. Blewett, 85 Wis. 155; Ellis v. S. W. Land Co., ante, p. 531. It does not seem to have been proper practice to enter a formal judgment on the referee’s report. The proper remedy was an order. Every ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, or the redress or prevention of a wrong, is denominated an action. E. S. sec. 2595. Every other remedy is a special proceeding. E. S. sec. 2596. The final determination of the rights of the parties, in an action, is denominated a judgment (E. S. sec. 2882), while every direction made in writing, not included in a judgment, is denominated an order (E. S. sec. 2812). It is plain that this proceeding, under the common practice and understanding, was neither an action at law nor a suit in equity. It must therefore be a special proceeding, within the statute definitions. It should properly have been terminated by an order. But the respondent obtains by the judgment the same relief which he should have had by an order. The difference is mainly a mere matter of form and definition, not affecting the substance of the thing intended. The respondent was allowed the full amount of his judg [674] ments, including interest up to the time of tbeir payment. One can hardly imagine ground for criticism in that. That is just what he should have realized if he had not released his levy. Rut costs are a creature of the statute. They cannot be allowed by the courts in cases not provided for by statute. The statute provides for the allowance of costs, generally, in actions. No such provision is made for their allowance in special proceedings. They-are allowed in such proceedings only when specially provided for by some statute. Costs on motions are given by sec. 2924, R. S. They are limited to $10. Respondent’s recovery of costs should have been limited to that sum. By the Court.— The order of the circuit court is affirmed, except as to costs, and as to costs it is reversed. The cause is remanded, with direction to allow the respondent $10 costs. The appellant is to pay the fees of the clerk of this court. Neither party is to have costs of the appeal.