Kreuger v. Zirbel , 2 Wis. 233 ( 1853 )

By the Court,

Whitow, C. J.

The plaintiff below (Zirbel) sued Kreuger in the County Court for Milwaukee county, in an action of covenant. The declaration alleged a breach of the covenant of seizin, and also'bf the covenant, that the covenantor had good right to sell and convey. The covenants were contained in a deed of a lot of land in the city of Milwaukee. Tne defendant pleaded non est factum, and also a special plea, in which he admitted that he had no title, legal or equitable, to the land, nor any right to convey it. The plaintiff recovered a judgment by consent, for the sum of thirty-five dollars and fifty cents, damages. After the recovery of the judgment for damages, the defendant moved for costs, on the ground that the damages were less than one hundred dollars. The motion of the defendant for costs was overruled, and a judgment for costs as well as damages, was rendered in favor of the plaintiffs.

We think that the court erred in giving costs to the plaintiff. The amount recovered shows that the case within the jurisdiction of a justice of the peace, and the pleadings show clearly that a justice could have tried the issue created by them. (Rev. Stat ch. 88, § 5; id. chap. 130, § 3, 5.) Under them,. it is apparent that the title to real estate could not in question, as, beside the special plea "which confessed that the defendant had no legal or equitable and no right to convey it, there was only the plea of non est factum. By this plea, nothing was put in issue but the making of the deed, and this issue might have been tried by a 'ustice of the peace. Barney vs. Keith, 6 Wend. 555. As the judgment for damages is correct, it must be affirmed as to them, and reversed as to costs. Mitchell vs. Kennedy, 1 Wis. R. 511. As we have a discretion in cases of this nature, upon the question of costs in this court, we have concluded to give costs to neither party. Kev. Stai. chap. 130, sec. 18.