Loomis v. Rice

Lyon, J.

The learned circuit judge evidently thought that the court had no power to award costs against the defendants, But in this we think he was in error. The action, although governed by somewhat peculiar statutory provisions, is essentially an equitable one; and we cannot doubt that the law confers upon the circuit court the power to award costs to the plaintiff. R. S., ch. 133, secs. 38 and 40. The act under which the action was brought (Laws of 1859, ch. 22), clearly recognizes the existence of such power; for, in sec. 39, we find a provision for the adjustment of costs in a certain contingency. Hence the judgment for costs is not null and void, for want of power in the circuit court to render it.

The judgment being valid, the only question to be determined is, whether the circuit court has power to vacate it at a term subsequent to that at which it was rendered.

It has been held by this court in several cases, and is well settled in this state and elsewhere, that the court has no power to vacate a judgment, at a subsequent • term, for mere error of the court. That power only exists in cases of mistake, inadvertence, surprise or excusable neglect, and is given by statute. R. S., ch. 125, sec. 38. Spafford v. Janesville, 15 Wis., 474; Ætna Ins. Co. v. McCormick, 20 id., 265; London v. Burke, 33 id., 452, and other cases there cited; Scheer v. Keown, 34 id., 349; Burning v. Burkhardt, id., 585. Manifestly the order appealed from was made for the purpose of correcting a supposed error in the judgment, and had no reference to the statute last cited. The above cases abundantly show that the power of the circuit court to make the order ceased with the term at which the judgment was rendered. We are compelled to hold, therefore, that' the circuit court had no power to vacate the judgment for costs at the June term, 1874.

By the Court. — Order reversed.