Geiser Threshing Machine Co. v. Smith , 36 Wis. 295 ( 1874 )

Ryan, C. J.

The 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.

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