McDonough v. Milwaukee & Northern Railroad

In October, 1881, this court in effect held that where a defendant on a trial obtained a compulsory nonsuit, and, after being requested by the plaintiff, unreasonably neglected to enter judgment thereon, the defeated party could not enter judgment for him, nor compel him to enter judgment, except by an order of court upon due application. Ballou v. C. & N. W. R. Co. 53 Wis. 150. To remedy that evil, the legislature a few months afterwards in effect enacted that “ whenever the finding of a court shall be filed, or the verdict of a jury shall be rendered in any cause, it shall be the duty of the successful party in the cause to enter and perfect the judgment upon such finding or verdict within sixty days after ” such filing or rendition; and in case of failure, he. is deemed to have waived his costs, and thereupon it is made the duty of the clerk to prepare and enter the proper judgment without costs to either party. Ch. 202, Laws of 1882. The decisions under *361that chapter are to the effect that it is not applicable to the mere rendition of a special verdict, upon which the clerk is not authorized to enter judgment, without special directions of the court to be subsequently given. Cornish v. M. & L. W. R. Co. 60 Wis. 479; Blomberg v. Stewart, 67 Wis. 457, 458. On the other hand, it has been held that upon the confirmation by the court of the findings of a referee, such findings become, in effect, the findings of the court. Crocker v. Currier, 65 Wis. 668. Here the cause “ was tried upon its merits,” and at the close of the defendant’s testimony a nonsuit was granted, and a judgment of nonsuit was thereupon ordered by the court. This was, in effect, a finding by the court that the evidence, upon the most favorable view for the plaintiff, failed to prove any cause of action alleged in the complaint. True, it was not what is usually regarded as “ the finding of a court ” to “ be filed,” much less the verdict of a jury, but it was a complete determination of that action so far as the court was concerned, and left nothing to be done, except the taxation of costs and the entry of judgment by the clerk, as ordered by the court. It was substantially the condition of things which existed in the Ballou Case, and which was sought to be remedied by the enactment mentioned. While the case is not within the letter of that chapter, we think it is within its spirit, when liberally construed, as it should be, since it is purely remedial. Being within the statute, the defendant conclusively waived its costs by failing to have them taxed within the time required.

By the Court.-- The portion of the judgment and the several orders appealed from are each and all affirmed.