State ex rel. Jones v. Jenkins

46 Wis. 616

• Court: Wisconsin Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Lyost, J.

The question of the right of the plaintiff or relator to costs is settled by the statute. It is provided in sec. 15, ch. 160, R. S., that “when a defendant, whether a natural person or a corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intruding into or unlawfully holding or exercising any office, franchise or privilege, judgment shall he rendered that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant.” The provision is retained in the late revision (sec. 3475, p. 879), and is controlling in all actions brought to try the right to an office which result in judgment of ouster against the defendant. The failure of the relator to establish his right to the office in controversy does not affect his right to recover costs under this statute. In the present case, the defendant was substantially adjudged guilty “of usurping or intruding into or unlawfully holding or exercising ” the office, and judgment went against him excluding him therefrom. The statute is imperative that the plaintiff must recover his costs. The court has no discretion to adjudge otherwise.

By the Court. — The .portion of the judgment appealed from is reversed, and the cause remanded with directions to the circuit court to award costs to the appellant.