Smith v. Hart

ORTON, J.

In this case, judgment was rendered for the relief asked in the complaint, and for costs, but the amount of costs is not taxed or inserted in the judgment.

Below, the judgment there is an order or direction by the court, that the clerk “ tax the costs, and insert the amount thereof in the judgment.” The judgment was not perfected so as to allow an appeal therefrom.

In Cord v. Southwell, 15 Wis., 211 , this court held that “ costs constitute a part of the judgment,” and that the judg-mentis “ not perfected until they are ascertained and included.”

The prerequisite of “entry of judgment,” in sec. 9, ch. 264, Laws of 1860, of an appeal within two years, and in sec. 12, of the service of a bill of exceptions within sixty days, is the same. In Bonesteel v. Bonesteel, 30 Wis., 151 , this court has held that the costs must be adjusted and inserted in the judg ment before the sixty days in the latter case begin to run.

If other authority were needed upon this point, reference may be had to the decisions in the state of New York, which appear to be nearly uniform, that the judgment is not perfected until the costs are taxed and inserted therein. Lentilhon v. The Mayor, etc., 3 Sandf., S. C., 721; McMahon v. Harrison, 5 How. Pr., 360 ; Hunt v. Middlebrook, 14 id., 300; McMahon v. Allen, 7 Abb. Pr., 1.

*231 The appeal was premature, and must be dismissed.

By the Cov/rt. — The appeal is dismissed, with costs.

RyaN, O. J., and LyoN, J., took no part.