#### McGowan, Appellant, vs. Paul and others, Respondents.

*February 5*

February *24,*1914.

*Costs: Equity: Discretion: Review: Towns: Setting aside void contracts: Costs against town but not against town officers: Taxation of costs: Fees for serving papers.*

1. In an equitable action the allowance of costs, being a matter in the discretion of tbe trial court, will not be disturbed upon appeal unless there was an abuse of that discretion.

2. Where, in an equitable action by a taxpayer, contracts which had been entered into by town officers acting on behalf of the town in good faith and in accordance with the wishes of a great majority of the electors were held void because not within the power of the town, there was no abuse of discretion in awarding costs to the plaintiff against the town and not against the town officers.

3. A motion to review the taxation of costs which does not, as re-*215quirecL by Circuit Court Rule XXXII, point out in what respect the moving party was aggrieved, is insufficient.

4. Items in plaintiff’s hill of costs for fees for service of summons, injunctional order, etc., although supported by affidavit of his attorney that such disbursements had been or would necessarily be made or incurred, were properly disallowed in taxing the costs, where the record showed and the court found that such service was not made by an officer.

Appeal from a judgment of the circuit court for Rock county: Geobge Grimm, Circuit Judge.

*Affirmed.*

This action was brought by a taxpayer on behalf of himself and other taxpayers to set aside contracts entered into by the officers of the defendant town of *Milton,*for building cement sidewalks and lighting streets. The case was here before (141 Wis. 388, 123 N. W. 253) and the contracts held void. This appeal is from a judgment entered upon the mandate of this court on the former appeal.

The cause was submitted for the appellant on the brief of *J. J. Cunningham,*and for the respondents except *Crossman, Doran,*and *Hayes*upon the brief of *Jeffris, Mouat, Oestreich ■& Avery.*

Kerwist, J.

The contentions here are (a) that the court below erred in adjudging costs against the defendant town of *Milton;*(b) in not adjudging costs against the defendants *John Paul, Henry Yale, E. D. Vincent, H. E. Schrader, L. A. Richardson, William Doran, B. P. Crossman,*and *Harry Hayes;*(c) that the court erred in disallowing certain items of costs incurred by plaintiff.

The mandate of this court on the former appeal ordered the judgment reversed and cause remanded with directions to render judgment declaring the contracts void and the levy of taxes and collection of the same for the purpose contemplated by such contracts illegal, and enjoining the town officers from issuing orders upon the treasurer for payment of any money upon such contracts, and enjoining the disbursement upon *216suck contracts of any money in tbe treasury. Judgment was entered by tbe court below in accordance witb tbe mandate, witb costs in favor of tbe plaintiff and against tbe defendant town of *Milton,*and that no costs should be allowed or taxed against tbe other defendants named.

Tbe contention of counsel for appellant under this bead is that tbe court erred in rendering judgment against tbe defendant town, and that judgment should have been rendered against tbe other defendants, especially tbe town officers, on tbe ground that, tbe contracts being void and without authority of law, tbe officers bad no power to make such contracts, therefore the costs should go against such officers, not against tbe town. Counsel relies upon *State ex rel. Gordon v. McNay,*90 Wis. 104, 62 N. W. 917, in which case tbe distinction is drawn between a case where tbe supervisors act on behalf of tbe town and a case where they act simply as governmental officers charged witb tbe execution of a police power; and it was held that in tbe latter case tbe town cannot be held liable for their acts.

In tbe case at bar, however, tbe officers were acting on behalf of tbe town, although acting without authority. Nevertheless it is perfectly clear from tbe record that they acted in perfect good faith, believing they bad authority to act, and not only that, but they were supported in their action by tbe great majority of tbe electors of tbe town. And it may further be observed in this connection that, while tbe plaintiff’s action purports to be on behalf of himself and other taxpayers, it appears from tbe findings and tbe record, not only here but on tbe former appeal (141 Wis. 388, 123 N. W. 253), that tbe taxpayers generally supported tbe action of tbe town officers and were opposed to tbe action of tbe individual plaintiff in bringing tbe suit.

It is further insisted by appellant that tbe defendant town of *Milton*should not have been made a party to tbe action and was not in fact made a party, and that no service of tbe *217summons and complaint was made upon tbe defendant town, and tbat tbe’ appearance of tbe town was voluntary and a gratuitous act of tbe town officers or of counsel for tbe town officers. But tbe record shows tbat tbe town was in fact a party, answered, and took part in tbe defense of tbe action in connection witb tbe town officers. Moreover, as before observed, tbe electors of tbe town, or at least a large majority of tbem, favored and supported tbe defense on tbe part of tbe town and tbe town officers and were opposed to tbe action of tbe individual plaintiff.

This action being in equity under our statutes, costs may be allowed in whole or in part, in tbe discretion of tbe court. Sec. 2918. And, independent of statute, tbe rule is that in equitable actions tbe allowance of costs is largely within tbe discretion of tbe court, and tbat such discretion will not be disturbed in tbe absence of abuse. 11 Cyc. 32; *Menz v.*Beebe, 102 Wis. 342, 77 N. W. 913, 78 N. W. 601. As before observed, in this case tbe officers acted in good faith and in accordance witb tbe wishes of a majority of tbe electors of tbe town, hence there was no abuse of discretion in not awarding costs against tbem. *Williams v. Williams,*117 Wis. 125, 94 N. W. 25; *Carrier v. Atwood,*63 Wis. 301, 24 N. W. 82; *O’ Connor v.*Walsh, 83 App. Div. 179, 82 N. Y. Supp. 499; *Scrafford v. Gladwin Co.*42 Mich. 464, 4 N. W. 167; *Zimmerman v. Miller,*237 Pa. St. 616, 85 Atl. 871.

We think it clear from tbe record tbat tbe court below did not abuse its discretion in awarding costs against tbe defendant town, therefore such discretion cannot be disturbed.

Tbe appellant also claims tbat error was committed in disallowing certain items of costs for service of injunction, in-junctional order, and summons, copies, and travel, which service, it appears from tbe record, was not made by an officer. Counsel for appellant seems to argue this point on tbe theory tbat tbe service was made by an officer, but tbe record shows and tbe court found to tbe contrary.

*218The clerk disallowed the following items:

> Pees service of summons and injunctional order. $4 50

> Copies summons, 16 fols. at 10c. 1 60

> Copies amended complaint, 144 fols. at 10c.-.. 14 40

> Travel, 24 miles at 10c. 2 40

The bill of costs had attached an affidavit of the attorney for plaintiff “that the disbursements above mentioned have been or will necessarily be made or incurred, as he is informed and believes, and the copies charged for therein were actually or necessarily used or necessarily obtained for use in said action'.”

To the taxation of the items above referred to the following objection was made by defendant:

> “None of the papers for which said disbursements have been made were served by an officer; that the person serving the same was not entitled to tax therefor; that no proof is on file or made as to the actual amount expended by said plaintiff for the service of said papers, and for the reason that said items are not properly taxable or allowable as disbursements herein.”

A motion was made to review the taxation of costs, but it does not appear from the record whether the notice complied with Rule XXXII of the Circuit Court Rules or not, or whether the notice was sufficient to bring before the court the items for review. Where the motion to review fails to point out in what respect the plaintiff was aggrieved by the action of the clerk as required by Circuit Court Rule XXXII, the motion is insufficient. *Turner v. Scheiber,*89 Wis. 1, 61 N. W. 280. The court on the review reversed the ruling of the clerk disallowing the following items in the bill of costs: “For draft injunctional order and copies, and draft affidavit and copies, draft bond for injunctional order and copies, in the sum of $11.59,” and ordered that such sum of $11.59 be allowed and added to the amount of the judgment for costs; and further ordered that the finding of the clerk disallowing items of disbursements in plaintiff’s bill of costs for “service *219summons and injunctional order and copies, and for service of amended complaint and for travel,” be sustained. There is no proof in tbe record sufficient to warrant tbe allowance of tbe items disallowed, so far as appears from tbe bill of exceptions. Counsel for appellant relies upon an affidavit of plaintiffs attorney, heretofore referred to, but this affidavit is not sufficient to overcome tbe finding of tbe court on review of taxation of costs upon tbe record before us. We are therefore of opinion that tbe judgment of tbe court on review of taxation of costs cannot be disturbed. We think tbe judgment below is right and should be affirmed.

*By the Gourt.*— Tbe judgment is affirmed.