Feske v. Adam

112 N.W. 456, 132 Wis. 365, 1907 Wisc. LEXIS 132

Opinion

Maeshall, J.

The order retaxing the costs is not appeal-able. That is ruled by many decisions under the present appeal statute, upon the ground that it did not prevent a judgment from which an appeal might 'be taken; but independently thereof it would not be appealable because a re-taxation of costs is not a special proceeding nor a summary application after judgment, nor a matter involving the merits. Ernst v. Steamer Brooklyn, 24 Wis. 616. Such an order is only reviewable on appeal from the judgment.

The point is made that there being no bill of exceptions neither the proceedings before the clerk nor those before the court are a part of the record and so are not reviewable upon appeal from the judgment. That must be decided in respondent’s favor under the doctrine of Cord v. Southwell, 15 Wis. 211; Perkins v. Davis, 16 Wis. 470; Hoey v. Pierron, 67 Wis. 262, 268, 30 N. W. 692; State v. Wertzel, 84 Wis. 344, 347, 54 N. W. 579; Lauterbach v. Netzo, 111 Wis. 322, 87 N. W. 230; and other cases. The rule is thus stated in the headnote to Perkins v. Davis, supra: for the purpose of reviewing an erroneous taxation of costs “a bill of exceptions is necessary, showing what occurred before the court and taxing officer, the items objected to, and what decision was made thereon.”

By the Court. — The judgment is affirmed.