Spengler v. Hahn

Matsssall, J. Numerous exceptions to the findings of fact and conclusions of law were duly filed, but a detailed discussion of the same is unnecessary. An examination of the record fails to disclose any error in the findings of fact excepted to, but the conclusion of law respecting the proper judgment to be entered was manifestly made in disregard of the statute, which declares in mandatory language what relief shall be granted in such cases. The language of sec. 3162, B. S., is: “ In all such actions, if the plaintiff shall recover, the judgment shall fix the amount of the mortgage debt then due, . . . and shall adjudge that the mortgaged premises be sold for the payment of the amount adjudged to be then due, . . . or so much thereof as may be sufficient to pay such amount for principal, interest and [475] costs, including costs of sale, and when demanded in the complaint, an order directing that judgment be rendered for any deficiency against the parties personally liable therefor.” Such statute is exclusive. It leaves nothing whatever to judicial discretion or the exercise of the general equity powers of the court, except to determine the amount of costs whicfy the prevailing party may recover. It does not, in terms, say that the prevailing party shall recover costs. That is left as regulated by sec. 2918, which provides that, 4< in all equitable actions, costs may be allowed or not to any party, in the discretion of the court.” Jones v. Jones, 71 Wis. 513; Portz v. Schantz, 70 Wis. 497. The word “ costs,” so used, includes solicitor’s fees stipulated in the mortgage to be paid in addition to taxable costs. Reed v. Catlin, 49 Wis. 686. Such discretion, however, is not to be exercised arbitrarily, or to suit the caprice of the presiding judge, but is governed by some rules which have become well established by long-settled practice, among which is that prima facie the prevailing party is entitled to full costs. Such rule should not be departed from without some special circumstance existing reasonably sufficient to vary it, and requiring such departure to the end that justice may be done between the parties. 3 Wait, Prac. 472; 5 Ency. of PI. & Pr. 185. While the exercise of judicial discretion in such cases necessarily must have a wide range, and not be called in question except for manifest abuse, in the foreclosure of a mortgage, where the parties have contracted for the allowance of solicitor’s fees in addition to taxable costs, it requires a very strong case against such allowance, on equitable principles, to justify a total denial of costs and solicitor’s fees as well; It sufficiently appears that the question of what costs should be allowed here was not determined by the trial court in respect to the entry of a proper judgment as required by law; hence, with the foregoing observations on the subject, that may be considered an open question, to be [476] determined by further proceedings in accordance with this opinion. By the Gourt. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion.