McMahon v. Snyder

Cassoday, O. J. Error is assigned because the court, on June 12, 1902, granted the appellant’s motion to continue the cause over the term on condition that she pay $25 to each of the three parties mentioned in the order of that date in lieu of taxed costs and expenses as a gross sum. There is no exception to the order. It is not one of those intermediate orders which the statute prescribes may be reviewed without exception. Sec. 3070, Stats. 1898. It was not properly a part of the judgment roll. If a review of the order was desirable, exception thereto should have been filed, as prescribed by the statute. Sec. 2872, Id. Besides, the order was discretionary, [466] and tliere is not enough in the record to show an abuse of such discretion. Hayes v. Frey, 54 Wis. 503, 11 N. W. 695; Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599; Gonring v. C., M. & St. P. R. Co. 78 Wis. 20, 47 N. W. 18. 2. Error is assigned because the circuit court declined to consider the application made July Y, 1902, by Thomas IT. Ryan for a change of venue on the ground of the prejudice of the trial judge, as mentioned in the foregoing statement. The reason for refusing to consider the application was that it was not regularly made. Thomas H. Ryan was not at the time an attorney of record in the case. He had procured the written consent of the attorneys of record that he might be substituted in their place and stead; but he had not procured the written consent of the appellant, Oatherine McMahon. The statute provides that: “Every person of full age and sound mind may appear by attorney in every action or proceeding by or against him in any court except criminal actions, or may, at his election, prosecute or .defend the same in person; but no person shall be permitted to appear on record in a civil action or proceeding in person while he has an attorney.” Sec. 2585, Stats. 1898. The rule of the circuit court provides that: “No order for the substitution of an attorney for a party shall be granted unless upon consent in writing signed by such party and his attorney; or for cause shown on due notice to the court or presiding judge, upon such terms as shall be just.” Circuit Court Rule V, sec. 2. The rale is made in pursuance of the statute, and contem-' plates consent in writing, signed by the party and his or her attorney of record, before any substitution is permissible. Such concurrence of attorney and client in the matter of substitution is to prevent obtrusion and secure the orderly administration of justice. It follows that the circuit court was not required to consider and determine upon the merits the application for change of venue so made. [467] 3. On the next day after the entry of judgment Thomas H. Ryan obtained the written consent of the appellant that he be substituted as her attorney in place of the attorneys of record. Thereupon, and on the same day, upon such written consent of the attorneys of record and Catherine McMahon, and upon motion of Thomas IT. Ryan, the circuit court ordered that he be, and he was thereby, substituted as attorney of record in the place and stead of the prior attorneys of record. Thereupon, and on the same day, July 9, 1902, Thomas IT. Ryan moved the circuit court upon all the pleadings and papers on file in this action, the minutes of the court, and the affidavit of prejudice filed therein, to set aside and vacate the judgment entered July 8, 1902, which motion was denied by the court August 26, 1902, to which the appellant took exceptions. But there is no appeal from that order, and, as it was made after judgment, it is not reviewable on the appeal from the judgment. Subd. 2, sec. 3069, Stats. 1898; sec. 3070, Id.; Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322; Levy v. Goldberg, 40 Wis. 308. 4. The judgment first ordered and adjudged that the appeal from the judgment of the county court be and is “in all things dismissed,” and then that sirch judgment of the county court be and is “in all things affirmed, with costs against said appellant, Catherine McMahon,” as thereinafter “adjudged and allowed.” Error is assigned because the court awarded out of the appellant’s share of the estate $100 to the attorneys of each of the five parties named in the foregoing statement, making in the aggregate $500, together with the clerk’s fees. In view of the statutes and the recent decisions of this court, it is very manifest that such allowances were unauthorized. Subd. 7, sec. 2918, Stats. 1898; sec. 2932, Id.; Mulberger v. Beurhaus, 102 Wis. 1, 78 N. W. 402; In re Donges' Estate, 103 Wis. 497, 513-518, 79 N. W. 786; Patton v. Ludington, 103 Wis. 629, 651, 79 N. W. 1073; Fox v. Martin, 108 Wis. 99, 100, 84 N. W. 23; In re Will of Healy, 108 Wis. 632, 84 [468] N. W. 835 ; Speiser v. Merchants’ Exch. Bank, 110 Wis. 506, 512, 519-520, 86 N. W. 243. As stated in one of the cases cited, the conclnsion in general terms is that “the allowance of counsel fees over and above statutory costs is without authority of law.” As stated by my Brother Dodge in the last case cited: “While the statutory restrictions . . . are, perhaps, not universally applicable, one of the principles announced should be constantly in mind, namely, that property should not be taken from its owner to pay the expenses of his adversary in litigation, directly or indirectly. The fact that such property is in the custody of the court is no justification.” 110 Wis. 512, 86 N. W. 245. And, again: “In no case, save as costs are taxable by statute, should a fund belonging to one litigant be depleted to pay the expenses of his antagonist, either directly or indirectly, in the form of allowance to a receiver or other trustee.” 110 Wis. 520, 86 N. W. 248. By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with direction to affirm the judgment of the county court and for further proceedings according to law.