First National Bank of Elkhorn v. Prescott

Wisconsin Supreme Court

First National Bank of Elkhorn v. Prescott

27 Wis. 616

CourtWisconsin Supreme Court

DecidedJanuary 15, 1871

StatusPublished

Cited by5 cases

This text of 27 Wis. 616 (First National Bank of Elkhorn v. Prescott) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First National Bank of Elkhorn v. Prescott, 27 Wis. 616 (Wis. 1871).

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Opinion

Cole, J.

There can be no doubt that the judgment was improperly entered in this case, and should have been set aside. Yates v. French et al., 25 Wis. 601. The answer to the original complaint constituted a defense as to several of the causes, of action ; and in respect to those it was a sufficient answer to the amended complaint, and formed an issue. It was irregular, therefore, to take judgment as upon default.

It is claimed that, on account of the matters stated in the affidavit of the attorney for the respondent, if the order appealed from is reversed, it should be without costs. The appeal statute (chap. 264, Laws of I860)' gives this court no discretion over the matter of costs in actions of this character. “ The party prevailing” here is entitled to costs. This is the express language of that statute. Sec. 36. We have held that the law was mandatory, and gave “ the prevailing party ” costs, except where different provision is made by law. Paine v. Chase, 14 Wis. 653.

The order of the circuit court must therefore be reversed, with costs, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.

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Cole, J.

There can be no doubt that the judgment was improperly entered in this case, and should have been set aside. Yates v. French et al., 25 Wis. 601. The answer to the original complaint constituted a defense as to several of the causes, of action ; and in respect to those it was a sufficient answer to the amended complaint, and formed an issue. It was irregular, therefore, to take judgment as upon default.

It is claimed that, on account of the matters stated in the affidavit of the attorney for the respondent, if the order appealed from is reversed, it should be without costs. The appeal statute (chap. 264, Laws of I860)' gives this court no discretion over the matter of costs in actions of this character. “ The party prevailing” here is entitled to costs. This is the express language of that statute. Sec. 36. We have held that the law was mandatory, and gave “ the prevailing party ” costs, except where different provision is made by law. Paine v. Chase, 14 Wis. 653.

The order of the circuit court must therefore be reversed, with costs, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.

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27 Wis. 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-elkhorn-v-prescott-wis-1871.

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