Opinion
February 16, 1948. —
March 29, 1948.
APPEAL from part of a judgment of the circuit court for Trempealeau county: R. S. COWIE, Circuit Judge. Reversed.
The cause was submitted for the appellant on the briefs of the Attorney General, Stewart G. Honeck, deputy attorney general, and Lavern Kostner, district attorney of Trempealeau county, and for the respondents on the brief of C. E. Fugina of Arcadia.
Action commenced in circuit court on September 16, 1946; by Trempealeau county against Garrett Marsh and Agnes Marsh, his mother. On June 10, 1946, the Trempealeau county highway committee, with the approval of the highway commission of the state of Wisconsin, had filed an award of $437 in favor of the defendants for the taking of their land and relocating a highway thereon. Defendants appealed from that award to the county judge of Trempealeau county, who awarded damages to the defendants in the sum of $800. Plaintiff then began this action in circuit court, appealing from the award made by the county judge. The case was tried before a jury in circuit court and damages for the defendants were assessed at $750. Judgment was rendered for that amount, the court adjudging that the costs and disbursements of the plaintiff be totally disallowed. From that part of the judgment plaintiff appeals.
The ruling denying costs was contrary to the provisions of sec. 32.11, Stats. 1945. That section provides that in an appeal taken by a party to a condemnation proceeding, "Costs shall be allowed to the successful party on the appeal." The respondents were successful before the county judge in their attempt to increase the amount due them over the original award of $437, but on the appeal from the county to the circuit court, there was a reduction of the damages from the $800, which the county judge had awarded, to $750. In the circuit court proceeding the appellant county was therefore the successful party. Washburn v. Milwaukee Lake Winnebago R. R. Co. (1884) 59 Wis. 364, 378, 18 N.W. 328.
The trial court evidently was prompted to disallow costs to the prevailing party in circuit court because of circumstances intervening between , the original award by the highway commission of $437 and the final assessment by the jury in circuit court of $750. However, in this situation the statute confers no such discretion upon the court as to the allowance of costs. Therefore the denial of costs and disbursements to appellant was error.
By the Court. — The part of the judgment appealed from is reversed. Cause remanded with direction to allow appellant its costs in accordance with this opinion.
BARLOW, J., took no part.