Dowling v. Fire Ass'n of Philadelphia

78 N.W. 581, 102 Wis. 383, 1899 Wisc. LEXIS 58

Opinion

Bardeen, J.

The question certified by the circuit judge could easily have been answered by him, had he referred to the statute governing costs in garnishee actions, and the decisions of this court. Sec. 2772, R. S. 1878, provides: “In case of a trial of an issue between the plaintiff and any garnishee, costs shall be awarded to the plaintiff and against the garnishee, in addition to his liability, if the plaintiff recover more than the garnishee admitted by his answer; and if he. do not, the garnishee shall recover costs of the plaintiff. In all other cases, under this chapter, not expressly provided for, the court may award costs in favor of or against any party, in its discretion.” In these cases the garnishees denied liability. The plaintiffs toot issue upon this answer and were defeated. The garnishees were put to the trouble and expense of a trial, and we see no reason why, under the terms of the statute, they should not be entitled to their costs. In Baker v. Lancashire Ins. Co. 52 Wis. 193, it was argued that the last clause of the statute quoted places the whole matter of costs in the discretion of the court, but the chief justice, in answering this contention, said: “ But we agree with the plaintiff’s counsel that this construction is not to be adopted, but that the court’s discretion in allowing costs is subject to, and controlled by, other statutory provisions.”

It being established that'the garnishees were entitled to their, costs, we are led to the inquiry whether the court had any discretion as to the amount that should be allowed. Sec. 2921, R. S. 1878, provides that when costs are allowed they shall be as therein prescribed. Subd. 7, sec. 2918, says that in all equitable actions costs may be allowed, or not, to any party, in the discretion of the court. In construing this provision in In re Carroll's Will, 53 Wis. 228, this court said: “ This discretion seems to be limited to allowing or disallowing to a party such costs as the other provisions of the statute prescribe, and not to be a discretion to fix an arbitrary amount, according to the trial judge’s notion of justice and equity in the particular case.” This construction was followed in Hayes v. Douglas Co. 92 Wis. 429, where it was said: “ It was error to limit the amount of costs to be recovered to $30. The court had exhausted its powers over the matter of costs when it had determined that the plaintiff should recover them. The law determines the amount.”

Referring to T. T. Haydock C. Co. v. Pier, 78 Wis. 579, we find it stated that in actions of this kind costs are not limited to $25, under sec. 2921, R. S. 1878, because they are not actions at law on contract. It follows, therefore, that the action of the circuit court was without warrant of law, and cannot be sustained.

By the Cou/rt.— The judgment in each of these several actions is reversed, and the cases are remanded with directions to enter judgments in favor of the garnishees for costs as originally taxed.