Schauble v. Tietgen , 31 Wis. 695 ( 1873 )

The following opinion was filed at the June term, 1872

DixoN, C. J.

The only question presented on this appeal is, whether a county judge, acting as a court commissioner and under the powers conferred upon him as such, has authority to entertain a motion in the nature of an appeal from a taxation of costs by the clerk of the circuit court, in in an action commenced and determined in that court, and so to review and fetax the costs in such action, and to direct a modification or entry of the judgment in it in accordance with his order. The county judge of Ozaukee county having entertained such application in behalf of the plaintiffs in this action, and having reduced the costs of the defendants, as taxed and allowed by the clerk against the plaintiffs, the defendants thereupon moved the circuit court to set aside the order for want of jurisdiction in the county judge to make it; and the same was set aside on that ground. The plaintiffs have brought this appeal from the order of the circuit court.

Counsel for the plaintiffs argues, not without ingenuity and considerable force, that the application for retaxation is a motion, and that the retaxation is an order, within the definitions given by the statute, and hence that the county judge had jurisdiction to receive and to act upon the application, within the very words of the statute. If it could be ascertained that the application for retaxation had ever been treated or looked upon simply as a motion, or if it could be shown that the hearing had ever taken place before, or the order been made by, a judge at chambers, then indeed the position of counsel would seem to be quite correct. But just here, as it appears to us, the difficulty arises. The application never has, so far as we are informed, been regarded simply as a motion in the ordinary course of proceedings, but rather as an appeal from the taxing officer of the court to tbe court itself. We are not aware that it bas ever been entertained, considered and determined merely as an order made upon motion, mucb less as a chamber order so made. To the end that there may be an appeal, or motion in the nature of one, it is required that the objecting party should appear before the taxing officer and there state his objections, which objections must be made to appear by the application and be shown at the hearing, where those and those only which were so taken will be examined and reviewed. All this is peculiarly characteristic of an appeal, and not of a motion. Such is the practice laid down by this court in Cord v. Southwell, 15 Wis., 211, 216, where it was said that the objecting party, having done this, “ might then be heard before the court as to the disputed items, upon motion for retaxation, in the nature of an appeal."

It follows from this view of the peculiar nature of the proceeding, it being a kind of appellate power exercised only by the court itself over its own taxing officer, that the county judge had no jurisdiction in the premises, and that his order was properly set aside for that reason.

And this is in harmony with the general professional idea of the dignity and inviolability of the judgment of a court of record, that no one but the court itself, not even the judge at chambers, can modify, change or set it aside. The costs, when taxed by the clerk, are inserted in and become a part of the judgment, and, as observed by counsel for defendants, oftentimes comprise, as in this case, the whole judgment in money ; and in such case to allow a county judge or court commissioner to interfere with and modify, change or set aside the judgment in whole or in part, would seem to be, as counsel also say, to confer upon those officers a power not possessed by the circuit judge himself at chambers, or which he could exercise at any other time except in term and when sitting as the court.

By the Court.— Order affirmed.

A motion for a rehearing was denied at the January term, 1873.