Charles v. Godfrey

104 N.W. 814, 125 Wis. 594, 1905 Wisc. LEXIS 197

• Court: Wisconsin Supreme Court
• Decided: October 3, 1905
• Status: Published

Opinion

WiNslow, J.

The plaintiff sued to foreclose a mechanic’s lien of $170 for the purchase price of a furnace placed by him in the defendant’s house, and the defendant counterclaimed on account of alleged defects in the installation and operation of the furnace. The court after trial found that the cold-air pipe was not properly placed, and allowed $25 damage upon the counterclaim therefor, and rendered the usual lien judgment for the plaintiff for $145, with interest,' hut limited the costs, exclusive of disbursements, to the sum ■of $25. The plaintiff appeals from the judgment and assigns as errors (1) the allowance of any sum upon the counter•claim, and (2) the limiting of the taxable costs.

Ueither assignment of error is well taken. There is no -certificate by the trial judge that the bill of exceptions contains all of the evidence, nor that it contains so much of the evidence as is necessary to present the questions of law raised at the trial. Hence we cannot review any finding of fact. Daskam v. Beemer, 64 Wis. 13, 24 N. W. 485.

The action is an equitable action. Sec. 3323, Stats. 1898. Prior -to the enactment of the Statutes of 1898, costs in an equitable action could be allowed or not, in the discretion of the court; but the court had no discretion to allow partial costs. By the last-named Statutes, however, subd. 7, sec. 2918, E. S. 1878, was amended by inserting the words “in whole or in part,” so that the circuit court now has authority to allow partial costs, in its discretion, in equitable actions. There is no special statute changing this rule in reference to actions to foreclose mechanics’ liens. Uo abuse of discretion appears in the present case.

By the Oourt. — Judgment affirmed.