#### Fowler, Appellant, vs. Metzger Seed & Oil Company, Respondent. Same, Respondent, vs. Same, Appellant.

*April 15*—

April *30, 1907.*

*Appeal: Trial contrary to stipulation: Consent of party alleging error: Compulsory reference: Long account: Appealable orders: Taxation of costs.*

J After it had been stipulated by tbe “parties that two actions should be tried together, tbe pleadings were amended and new issues introduced. On suggestion by the court of tbe difficulty of trying tbe cases together, plaintiff’s attorney in one of them stated that be was willing to have it tried separately, and it was so tried. Held,'that as against plaintiff there was no error in such separate trial contrary to tbe stipulation.

.2. Where it appeared that tbe trial of an'issue of fact required tbe examination of an account on one side containing more than 500 entries and one on tbe other side containing nearly 100 entries, a compulsory reference was authorized by sec. 2864, Stats. (1898).

-8. An order fixing tbe costs to be inserted in a judgment is not appealable, but is reviewable on appeal from tbe judgment if tbe evidence on which it is based and the exceptions thereto are preserved in a bill of exceptions.

Appeals from a judgment and an order of tbe superior ■court of Douglas county: A. J. ViNJE, Judge.

*Judgment affirmed; appeal, from order dismissed.*

This action was commenced August 20, 1903, to recover $2,500 upon an agreement made prior to November 1, 1901, whereby tbe defendant, a corporation located at Toledo, Ohio, agreed to pay tbe plaintiff, residing in Superior, for buying flaxseed for tbe defendant at tbe rate of one cent per busbel, and in addition thereto to pay to tbe plaintiff $50 per month, tbe plaintiff to forward or advance on account of tbe defendant moneys for tbe purpose of assisting in tbe purchase and binding tbe contracts. Tbe complaint alleged that tbe plaint*634iff remained in suck employ until July 1, 1903; tkat tke defendant failed and neglected and refused to pay tke plaintiff tke $50 per montk or any otker sum on or after November 1, 1901; and tkat tkere was due to tke plaintiff from tke defendant for suck service $1,000, and also for moneys so advanced' by tke plaintiff on tke purekase of flaxseed from tke Dakota Elevator Company, for tke use and benefit t>f tke defendant,. $1,500, no part of wkick kas ever been repaid by tke defendant.

Tke defendant answered by way of admissions, denials, and counter allegations, and also by way of a counterclaim for $3,155.50 as an alleged balance for moneys advanced by tke defendant to tke plaintiff in excess of receipts. Tke plaintiff replied to suck counterclaim. Subsequently tke complaint was amended by increasing tke amount so alleged to kave been advanced by tke plaintiff from $1,500 to $8,500, and tke prayer for judgment to $10,500. Tke answer was thereupon amended.

It appears tkat about tke time of tke commencement of this-action another action was commenced by tke so-called Dakota Elevator Company, doing business at Superior, against tke defendant to recover several thousand dollars by reason of tke decline in tke market of flaxseed between tke times of sales to this plaintiff, *H. T.*Fowler, as defendant’s agent, and tke defendant’s refusal to accept tke same, with storage charges and otker expenses, tke Dakota Elevator Company having, as claimed, sold tke flaxseed to otker parties at a loss of several thousand dollars. Issue having been joined in-tkat action, on April 9, 1904, this stipulation was .entered into by tke parties to this action:

“It is hereby stipulated by and between tke parties to this action first above entitled shall be placed upon the calendar of tke present term of said court, and stand for trial at tke same time as tke action in wkick the Dakota Elevator Company is plaintiff, and tkat both of these actions shall be tried together at one and tke same time.”

*635Tbe causes came on for trial before a jury May 5, 1904. Thereupon it was attempted to be proved that tbe so-called Dakota Elevator Company bad been incorporated by amending tbe articles of incorporation and changing tbe name of the-Terminal Storage Company of Superior to tbe Dakota Elevator Company, and, being unable to make such proof, the-causes were adjourned to May 9, 1904, when the trial was resumed before tbe same jury. It having transpired that such proof could only be made by an absent witness, tbe causes were continued to tbe April term, 1905. Tbe two actions finally came on for trial August 1, 1905, before a new jury. Thereupon counsel for tbe so-called Dakota Elevator Company announced that be was unable to prove such amendment of tbe articles of incorporation of tbe Terminal Storage Company, as such amendment was never filed in tbe office of the-secretary of state or tbe register of deeds, and so be asked to amend tbe complaint in that action by making tbe plaintiff named therein stand as “The Terminal Storage Company,, doing business as the Dakota Elevator Company.” Tbe court refused to allow such amendment, but otherwise allowed tbe pleadings in both actions to be amended as mentioned.

On tbe suggestion of tbe court that it would be difficult to try tbe two cases together, tbe plaintiff in this, tbe *Homer T. Fowler*case, expressed a willingness to try that case by itself, to which tbe defendant withheld its assent. Tbe court then held that tbe two cases could not properly be tried together before tbe same jury, and thereupon directed tbe two causes-to be tried separately before separate juries.

Thereupon, and after tbe reading of tbe affidavit for reference on tbe part of tbe defendant and tbe statement of facts in lieu of an affidavit on tbe part of-tbe plaintiff, tbe court granted tbe defendant’s motion for reference in tbe *Fowler*case, and, with tbe consent of counsel, appointed T. L. McIntosh such referee to bear proofs, take tbe evidence, make bis findings of fact and conclusions of law, and report tbe same *636to tRe court for confirmation, and tliat the official reporter at-, tend said trial as sucR. TRerenpon tRis canse was tried before tRe referee, wRo made Ris findings of fact and conclusions ■of law, wRieR, after being modified and corrected, were confirmed by tRe court, and from tRe judgment entered thereon .in favor of tRe defendant and against tRis plaintiff for $4,729.58 damages upon its counterclaim, and costs, the plaintiff appeals to this court.

In taxing costs tRe clerk of tRe trial court allowed to tRe •defendant witness fees for its treasurer and secretary, eacR ■$47.70, making $95.40, wRieR tRe trial court by order reversed and set aside and Reid' for naugRt, and ordered sucR witness fees to be thereby fully disallowed, with $10 costs of motion. From that order the defendant appeals to this court.

For the plaintiff there were briefs by *Boss & Dwyer*and *Grace & Hudnall,*and oral argument by *George B. Hudnall.*

For the defendant there were briefs by *Luse, Powell & Luse,*and oral argument by *L. K. Luse.*

Cassoday, C. J.

1. The plaintiff seeks to reverse the judgment upon two grounds, neither of which goes to the merits of the action. One of the errors assigned is that the court improperly ordered the issues in this action and the action of the Dakota Elevator Company against this same defendant to be separately tried, contrary to the stipulation between the parties made April 9, 1904, as set forth in the foregoing statement. TRis order or direction of the court to try the two causes separately was made August 1, 1905, nearly sixteen months after the making of the stipulation. In the meantime the pleadings Rad been amended and new issues introduced, especially as to the case brought in the name of the Dakota Elevator Company, a supposed corporation, but the corporate existence of which the plaintiff’s counsel conceded in open court he was unable to prove. Besides, when the trial court suggested the difficulty of trying the two cases together, coun*637sel for tlie plaintiff stated to tlie court: “We are willing to-try this case by itself — the *Homer T. Fowler*case.” Again, the conrt expressed a willingness “to proceed with the trial of either case separately before the jury impaneled to try the action generally,' if the parties shall consent; otherwise the court will discharge the jury and impanel a jury in each case separately.” Thereupon the same counsel for the plaintiff' stated: “The plaintiff is willing to go ahead with the same-jury in the case of *Homer T. Fowler*against the *Metzger Seed & Oil*Co." The only objection came from counsel for the defendant, and he is in no position to assign error on that ground, and he does not. We must hold that there was no reversible error in trying this action by itself and separately from the other.

2. The only other error assigned by the plaintiff is in granting the motion of the defendant for a compulsory reference. The court is authorized, upon the application of either party or of its own motion, to direct a reference whenever the trial of an issue of fact requires the examination of a long account on either side. Sec. 2864, Stats. (1898). The affidavit on the-part of the defendant for the reference states, among other-things, in effect, that the trial of this action will require the examination of a long account *on each side of the case;*that the plaintiff had been examined under sec. 4096 and his deposition taken, and at that time, in obedience to a subpoena and order, he produced before a court commissioner his books of account and copy books, containing copies of letters, statements of both purchases and shipments of flax to the defendant in November and December, 1901, and entries in relation to the flax alleged to have been purchased for the defendant and not shipped; that the items of said account necessary to examine in the case relate to separate entries of over sixty-carloads of flax, and contain the amount shipped, the price, weight, commissions, expense charges, in all covering more than 500 entries; and that the trial will further require the-*638•examination of an account kept by tbe defendant containing about sixty-five debit entries and twenty-five credit entries. Tbe affidavit is full of details and seems to satisfy all tbe requirements of tbe statute. Tbe application for tbe reference was addressed to tbe sound discretion of tbe trial court. , We find no abuse of sucb discretion in granting tbe reference. Tbe merits of tbe controversy were not to be determined upon sucb application. Tbe making of tbe order of reference is fully .justified by tbe adjudications of tbis court. *Littlejohn v. Regents,*71 Wis. 437, 443, 37 N. W. 346; *Sutton v. Wegner, 74*Wis. 347, 43 N. W. 167; *Briggs v. Hiles,*79 Wis. 571, 48 N. W. 800; *Lyle v. Esser,*98 Wis. 234, 239, 73 N. W. 1008; *Winnebago Co. v. Dodge Co.*125 Wis. 42, 103 N. W. 255.

3. Tbe defendant appeals from tbe order disallowing and striking out two items of witness fees of $47.70 each. Tbe order so appealed from fixed tbe costs to be inserted in tbe judgment, and, of course, must be regarded as having been made before judgment. *Cord v. Southwell,*15 Wis. 211; *Hoey v. Pierron,*67 Wis. 262, 30 N. W. 692; *Wheeler v. Russell,*93 Wis. 135, 139, 67 N. W. 43. In other words, tbe judgment was incomplete until tbe costs were determined and inserted therein. Id. Sucb an order may be reviewed on an appeal from tbe judgment itself when tbe errors complained of appear upon tbe record. *Hoey v. Pierron, supra.*But an order allowing or disallowing costs is not reviewable by tbis court, unless tbe evidence upon which it is based and the exceptions thereto are preserved in a bill of exceptions. *Cord v. Southwell, supra; Perkins v. Davis,*16 Wis. 470; *State v. Wertzel,*84 Wis. 344, 54 N. W. 579; *Dunbar v. Montreal River L. Co.*127 Wis. 130, 106 N. W. 389. We must bold that tbe order in question is not appealable.

*By the Oourt.*— Tbe judgment of tbe superior court of Douglas county is affirmed, and tbe appeal from tbe order •disallowing certain costs is dismissed.