Case v. Fuldner

Decided May 21, 1901

Wisconsin Supreme Court · decided 1901-05-21

Costs: Demurrer: Appeal, 1. Under sec. 3686, Stats. 1898 (providing that alter the decision of a demurrer the court may permit the party interposing the demurrer to plead over or withdraw his demurrer on terms), an order awarding absolutely $10 costs on overruling a demurrer is erroneous; such costs are only admissible as terms of leave to interpose some further plea. 2. On a general appeal from such order, no question being raised but that it was proper except as to costs, the order will be reversed as to costs and otherwise affirmed.

Cited by 3 later decisions — most recently October 1968

3 state decisions

Relies on Schoenleber v. Burkhardt · Curtis v. Moore · Bishop v. Aldrich

Good law ✅— No negative treatment on recordhow we know

Affirmed inpa/rt · Decided 1901-05-21

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MaRshall, J.

¶1The question presented for decision is ruled in favor of appellant by sec. 2686, Stats. 1898. Curtis v. Moore, 15 Wis. 134; Bishop v. Aldrich, 48 Wis. 619, 623; Schoenleber v. Burkhardt, 94 Wis. 575; Schroeder v. Richardson, 101 Wis. 529; State ex rel. Rice v. Chittenden, 107 Wis. 354. The statute cited plainly indicates that special costs against a losing party, upon the decision of a demurrer, or any costs other than such as abide the final result of the action and to be taxed in the ordinary fee bill, are only admissible as terms of leave to interpose some further plea. This court has repeatedly so held in the cases cited. The appeal from the order being general, and no question being raised but that it was proper except as to the costs, it must be reversed as to that feature and otherwise be affirmed.

¶2By the Court.— So ordered. Ordered further that costs in this court in favor of appellant be limited to clerk’s fees.