Radford v. Smith

EtsewiN, J. Two main points are raised by the assignment of errors on this appeal, namely: (1) that the court granted defendants no relief on their so-called counterclaim; and (2) that the judgment is not authorized by the findings. It is contended by appellants that since there was no reply to the counterclaim the court should have rendered judgment in [166] their favor upon it without any application by them for judgment. Whether the defendants could put in a counterclaim, even conceding that it sets up a cause of action, and pay no further attention to it and ask no relief thereon from the court below and then have relief on an appeal from the judgment because the court had disregarded the counterclaim or refused relief upon it, we need not stop to consider. The facts which constitute the basis of defendants’ alleged counterclaim here were not even pleaded as a counterclaim. As appears from the statement of facts, the defendants merely alleged that their damages by reason of the failure of plaintiff to give them notice is $200, and that the same is pleaded as a counterclaim against the plaintiff’s demand upon the note and mortgage in suit. But, even assuming that all the facts set up in the answer were properly pleaded as a counterclaim, they do pot constitute a cause of action, for the reason that they do not show any agreement for any time of extension nor that there was any consideration for such agreement, hence the alleged agreement was void. Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056; Union Nat. Bank v. Cross, 100 Wis. 174, 75 N. W. 992. Counsel for defendants call our attention to some authorities which it is claimed support the contention that the so-called agreement was valid. But after a careful examination of these authorities we are convinced that they do not support counsel’s position. It is further argued that the judgment does not follow the findings on the question of sale of the property in one parcel. We do not regard this position tenable. The court found that the premises constituted the homestead of the defendants and are so situate that they cannot be sold in parcels without injury to the interests of the parties. The judgment substantially follows this finding. At least there is no such variance as to prejudice the defendants. It is also insisted, that under the findings the plaintiff was not entitled to costs, because in equitable actions the costs are [167] in tlie discretion of tlie court. This contention cannot be sustained. The plaintiff demanded costs, and the court concluded and ordered that he was entitled to the relief demanded in the complaint, which covered costs. There are perhaps other reasons why the appellants cannot question the costs here, but it is unnecessary to consider them. The most serious question under this head is the variance between the finding and the judgment respecting the amount ■due and payable as delinquent taxes paid or redeemed by the plaintiff. The appellants make some contention to the effect that under the statute (sec. 3165, Stats. 1898) the amount paid by the plaintiff for such taxes cannot be included in the judgment. But since there is no bill of exceptions here we cannot say that the finding of the court in that regard is wrong. It is conceded that the plaintiff was entitled only to $250.66, not $400.12, amount inserted in the judgment, therefore the judgment in that regard is $149.46 too large and must be reduced accordingly. It is quite obvious that no appeal would have been necessary to make this correction,, but ■that the plaintiff would have corrected the judgment upon request, if made before appeal taken, and since this is the only prejudicial error in the judgment and which could have been •corrected without appeal, the court is of opinion that no costs should be allowed to appellants in this court. Rust v. Fitzhugh, 132 Wis. 549, 112 N. W. 508; Spafford v. McNally, 130 Wis. 537, 110 N. W. 387; Andresen v. Upham Mfg. Co. 120 Wis. 561, 98 E. W. 518. By the Court. — The judgment of the court below is modified by deducting therefrom $149.46, and as so modified is affirmed as of the date of the judgment; neither party to recover costs, but respondent shall pay the clerk’s fees in this ■court.