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36 Wis. 295

Geiser Threshing Machine Co. v. Smith

Wisconsin Supreme Court

Decided June 15, 1874

Wisconsin Supreme Court · decided 1874-06-15

Action upon a promissory note. Special verdict as follows : “ That on the 18th of March, 1878, defendants paid to plaintiff’s attorney the principal and interest on the promissory note described in tbe complaint, in full; that plaintiff’s attorney accepted the money, but claimed $17 costs, which defendants refused to pay, and plaintiff’s attorney kept the note and refused to surrender it until the costs were paid; and that on the 17th of March, 1878, tbe summons and…

Key passage — most relied on by later courts

““Because, whether it was commenced or not, the acceptance by the plaintiffs of full payment of the amount due on the note extinguished their right to prosecute it. It may be that the plaintiffs might have refused the payment, and prosecuted the suit to judgment for damages and costs. But they could not receive the damages and reserve the right to prosecute the suit for costs. Canfield v. School District, 19 Conn. 529 ; Ayer v. Ashmead, 31 Conn. 447 [ 83 Am. Dec. 154 ]; Buell v. Flower, 39 Conn. 462 [ 12 Am. Rep. 414 ].””

quoted by 1 later decision, including Obert v. Zahn

Good law ✅— No negative treatment on recordhow we know

Decided 1874-06-15

How this case has been cited

Cited by 7 later decisions — most recently November 1952

7 state decisions

30187418801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Ryan, C. J.

¶1The code appears to sanction the pendency of an action in pais; a dangerous anomaly, tending to abuse. It is not necessary, however, to decide when this suit was commenced. Because, whether it was commenced or not, the acceptance by the plaintiffs of full payment of the amount due on the note extinguished their right to prosecute it. It may be that the plaintiffs might have refused the payment, and prosecuted the suit to judgment for damages and costs. But they could not receive the damages and reserve the right to prosecute the suit for costs. Canfield v. School District, 19 Conn., 529; Ayer v. Ashmead, 31 id., 447; Buell v. Flower, 39 id., 462; and other cases cited by the appellants. We take it that the code does not sanction the other anomaly, that, upon issue joined in an action sounding in damages, the plaintiff may recover costs, without damages, as happened in this case. In such cases, the right to recover costs is a mere incident of the right to recover damages.

¶2By the Court. — The judgment of the court below is reversed.

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