Kerwin v. Albrecht

145 N.W. 205, 155 Wis. 599, 1914 Wisc. LEXIS 48

• Court: Wisconsin Supreme Court
• Decided: February 3, 1914
• Status: Published

Opinion

ViNjn, J.

The circuit court, under the provisions of sec. 2669a, Stats. 1913, properly allowed the complaint to be amended, though it changed the nature of the action from one for money had and received to the statutory action provided for by secs. 2955-2957, Stats. 1913. The amended complaint stated a cause of action arising out of the same transactions, and therefore came within the requirements of sec. 2669a as to amendments to the complaint.

The statutory action, however, cannot be maintained, for this is not a case under secs. 2955 — 2957. In Musback v. Schaefer, 115 Wis. 357, 91 N. W. 966, these sections were construed, and it was there held that the words therein “allowed by law” or “allowed by the laws of this state” related only to cases in which, a definite sum is fixed by the statute or the laws of the state as compensation for a specific service. They do not include a case where, as here, the statute (sec. 3752, Stats. 1913) provides for “such compensation for his trouble and expenses ... as shall be reasonable and just” to be allowed or taxed by the justice. It was obviously the intent of the legislature that no official shall be subject to the penalty provided for by sec. 2957 unless he can by a reference to the laws of the state easily determine for himself whether or not he charges more for a service than is allowed by law, or whether he charges the statutory fee for a service not rendered at all. To subject an official to such penalty, where the court is required to allow what is just and reasonable, in case of an erroneous or- an excessive allowance, would be unjust. The action under the statute to recover damages and penalty is limited to cases in which definite compensation for a service is fixed by the laws of this state, and such definite compensation is received, except lawful advance fees, where no service is rendered; or, where the service is rendered, more than such definite compensation is received therefor.

In the present case the defendant did render some service for which the justice could lawfully have allowed him compensation under sec. 3752, namely, for his trouble and expense in taking the horse from the defendant in the replevin action and delivering it to Mr. Dorn. Of course the compensation allowed was excessive for the service rendered, and no part of it appears to have been allowed for such service at all. But the justice had jurisdiction of the subject of allowing compensation to the defendant for services rendered in the replevin action, and any error committed by him in tbe allowance of costs should have been corrected in the action before the justice or on appeal therefrom. No independent action can be maintained to correct such error. To permit it would be to subject every judgment of an inferior court, where a party felt aggrieved as to the taxation of costs, to a test as to the correctness thereof by a separate suit' instead of proceeding in the same action as the statute and practice requires.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.