Fowler v. Metzger Seed & Oil Co.

Cassoday, C. J. 1. The plaintiff seeks to reverse the judgment upon two grounds, neither of which goes to the merits of the action. One of the errors assigned is that the court improperly ordered the issues in this action and the action of the Dakota Elevator Company against this same defendant to be separately tried, contrary to the stipulation between the parties made April 9, 1904, as set forth in the foregoing statement. TRis order or direction of the court to try the two causes separately was made August 1, 1905, nearly sixteen months after the making of the stipulation. In the meantime the pleadings Rad been amended and new issues introduced, especially as to the case brought in the name of the Dakota Elevator Company, a supposed corporation, but the corporate existence of which the plaintiff’s counsel conceded in open court he was unable to prove. Besides, when the trial court suggested the difficulty of trying the two cases together, coun [637] sel for tlie plaintiff stated to tlie court: “We are willing to-try this case by itself — the Homer T. Fowler case.” Again, the conrt expressed a willingness “to proceed with the trial of either case separately before the jury impaneled to try the action generally,' if the parties shall consent; otherwise the court will discharge the jury and impanel a jury in each case separately.” Thereupon the same counsel for the plaintiff' stated: “The plaintiff is willing to go ahead with the same-jury in the case of Homer T. Fowler against the Metzger Seed & Oil Co." The only objection came from counsel for the defendant, and he is in no position to assign error on that ground, and he does not. We must hold that there was no reversible error in trying this action by itself and separately from the other. 2. The only other error assigned by the plaintiff is in granting the motion of the defendant for a compulsory reference. The court is authorized, upon the application of either party or of its own motion, to direct a reference whenever the trial of an issue of fact requires the examination of a long account on either side. Sec. 2864, Stats. (1898). The affidavit on the-part of the defendant for the reference states, among other-things, in effect, that the trial of this action will require the examination of a long account on each side of the case; that the plaintiff had been examined under sec. 4096 and his deposition taken, and at that time, in obedience to a subpoena and order, he produced before a court commissioner his books of account and copy books, containing copies of letters, statements of both purchases and shipments of flax to the defendant in November and December, 1901, and entries in relation to the flax alleged to have been purchased for the defendant and not shipped; that the items of said account necessary to examine in the case relate to separate entries of over sixty-carloads of flax, and contain the amount shipped, the price, weight, commissions, expense charges, in all covering more than 500 entries; and that the trial will further require the638 •examination of an account kept by tbe defendant containing about sixty-five debit entries and twenty-five credit entries. Tbe affidavit is full of details and seems to satisfy all tbe requirements of tbe statute. Tbe application for tbe reference was addressed to tbe sound discretion of tbe trial court. , We find no abuse of sucb discretion in granting tbe reference. Tbe merits of tbe controversy were not to be determined upon sucb application. Tbe making of tbe order of reference is fully .justified by tbe adjudications of tbis court. Littlejohn v. Regents, 71 Wis. 437, 443, 37 N. W. 346; Sutton v. Wegner, 74 Wis. 347, 43 N. W. 167; Briggs v. Hiles, 79 Wis. 571, 48 N. W. 800; Lyle v. Esser, 98 Wis. 234, 239, 73 N. W. 1008; Winnebago Co. v. Dodge Co. 125 Wis. 42, 103 N. W. 255. 3. Tbe defendant appeals from tbe order disallowing and striking out two items of witness fees of $47.70 each. Tbe order so appealed from fixed tbe costs to be inserted in tbe judgment, and, of course, must be regarded as having been made before judgment. Cord v. Southwell, 15 Wis. 211; Hoey v. Pierron, 67 Wis. 262, 30 N. W. 692; Wheeler v. Russell, 93 Wis. 135, 139, 67 N. W. 43. In other words, tbe judgment was incomplete until tbe costs were determined and inserted therein. Id. Sucb an order may be reviewed on an appeal from tbe judgment itself when tbe errors complained of appear upon tbe record. Hoey v. Pierron, supra. But an order allowing or disallowing costs is not reviewable by tbis court, unless tbe evidence upon which it is based and the exceptions thereto are preserved in a bill of exceptions. Cord v. Southwell, supra; Perkins v. Davis, 16 Wis. 470; State v. Wertzel, 84 Wis. 344, 54 N. W. 579; Dunbar v. Montreal River L. Co. 127 Wis. 130, 106 N. W. 389. We must bold that tbe order in question is not appealable. By the Oourt. — Tbe judgment of tbe superior court of Douglas county is affirmed, and tbe appeal from tbe order •disallowing certain costs is dismissed.