Wolfe v. Furman

Knnwrisr, J. The only question before ns is one of costs. It is claimed by appellant that, although the value of the' property recovered in the action was but $40, the title, to land came in question, hence the plaintiff was entitled to costs. The court below found that the question of title to real property was not presented by the pleadings, nor did it arise on-the proceedings or come in question at the trial, and that the defendant was entitled to costs. There is no bill of exceptions; therefore we need only inquire whether the judgment is warranted upon the findings- The defendant was entitled to costs upon the findings unless the title to real property was in question. Secs. 2918, 2920, Stats. (1898). The mere-fact that the complaint alleged that the hay was cut from real property did not necessarily show that the title to land came in question, nor did the finding that one Ayer was the owner of the land from which it was cut. That the title to the land was admitted or not disputed is consistent with the findings and judgment. Appellant relies upon several decisions of' this court which we will briefly consider. In Lipsky v. Borgmann, 52 Wis. 256, 9 N. W. 158, the title to land was put in-issue by the pleadings and, as the court said in that case, made a proper case for recovery of costs. Ames v. Meehan, 63 Wis. 408, 23 N. W. 586, was an action brought in circuit court for the recovery of the value of timber alleged to'have-been wrongfully cut and removed from the plaintiff’s land. Plaintiff recovered $38.75. In this case also the title to the land from which the timber was cut was put in issue by the [97] pleadings. In the ease before ns the pleadings did not put the title to any land in question. ' The title to the hay alleged to have been cut from certain land was in issue by the pleadings, but not the title to the land from which it was cut. Maxim v. Wedge, 69 Wis. 547, 35 N. W. 11, was an action for trespass to real estate in cutting trees thereon. The title was put in issue by the pleadings. The above cases relied upon by the appellant are distinguished from the case before us 'in this: that in the instant case the title to the land was not put in issue by the pleadings and there is nothing in the record to show that it came in question, and the court below found that it did not The judgment below is right and must be affirmed. By the Court. — The judgment is affirmed.