Wirth v. Bartell

62 N.W. 408, 89 Wis. 594, 1895 Wisc. LEXIS 180

• Court: Wisconsin Supreme Court
• Decided: March 5, 1895
• Status: Published

Opinion

Cassoday, J.

The exception to the refusal to dismiss the action is overruled. The plaintiff paid the defendant $14.16 for the privilege of proceeding in the case upon his cause of action upon contract alone. After accepting that money, the.defendant was no longer in a position to question the plaintiff’s fight to proceed to trial upon that'cause of action alone. Cogswell v. Colley, 22 Wis. 399; Flanders v. Merrimac, 44 Wis. 621; Webster-Glover L. & M. Co. v. St. Croix Co. 71 Wis. 311; Smith v. Coleman, 77 Wis. 348. There was no ground, therefore, for dismissing the action, especially as. it was remanded for a new trial. 84 Wis. 209. It follows that upon the stipulation filed the plaintiff was entitled to judgment for the amount of damages mentioned.

The only remaining question is as to whether the costs allowed were excessive. The only exception preserved in the bill of exceptions upon this appeal, as to the costs, is an exception to tbe order and finding of tbe conrt dismissing tbe appeal from tbe taxation of costs by tbe clerk, and tbe costs. Sncb a general exception does not bring before ns for review tbe ruling of tbe conrt npon any specific item of costs. Luedtke v. Jeffery, ante, p. 136.

By the Court.— Tbe judgment of tbe circuit conrt is affirmed. . .