Trempealeau County v. Marsh

31 N.W.2d 519, 252 Wis. 278, 1948 Wisc. LEXIS 275

Opinion

Fairchild, J.

The ruling denying, costs w,as contrary to the provisions of sec. 32.11, Stats. 1945. That section provides that in an appeal taken by a party to a condemnation proceeding, “Costs shall be allowed to the successful party on the appeal.” The respondents were successful before the county judge in their attempt to increase the amount due them over the original award of $437, but on the appeal from the county to the circuit court, there was a reduction of the damages from the $800, which the county judge had awarded, to $750. In the circuit court proceeding the appellant county was therefore the successful party. Washburn v. Milwaukee & Lake Winnebago R. R. Co. (1884) 59 Wis. 364, 378, 18 N. W. 328.

The trial court evidently was prompted to disallow costs to the prevailing party in circuit court because of circumstances intervening between the original award by the highway commission of $437 and the final assessment by the jury in circuit court of $750. However, in this situation the statute confers no such discretion upon the court as to the allowance of costs. Therefore the denial of costs and disbursements to appellant was error.

By the Court. — The part of the judgment appealed from is reversed. Cause remanded with direction to allow appel- . lánt its costs in accordance with this opinion.

Barlow, ]., took no part.