#### Cord vs. Southwell, impleaded, &c.

where there is no bill of exceptions, nothing is in the record except such papers as properly constitute the judgment roll.

The evidence in such case, whether documentary or otherwise, does not constitute any part of the judgment roll.

A stipulation made between parties, as to the order in which mortgaged premises shall be decreed to be sold, and au order directing that a certain sum shall be allowed as a solicitor’s fee in addition to the taxable costs, necessarily affect the judgment and involve its merits, and are part of the judgment roll.

But the order for the taxation of costs, being an order made *before*judgment, cannot be reviewed in this court, unless a written exception to it was filed, and incorporated, with the order, in the bill of exceptions.

An order fixing costs to be inserted in’the judgment, though made after the judgment was otherwise complete, is to be regarded, for the purpose of appeal and review, as having been made *before*the judgment.

The mortgage does not become part of the record or judgment roll in a foreclosure suit by the fact of its being filed among the papers-in the cause.

*212This court will not review the taxation of costs when the subject was not brought to the attention of the court below. For that purpose exceptions are necessary, showing what occurred before the court and taxing officer, the items objected to, and the decision of the court thereon.

Notice must in all cases be given before the costs can be taxed (R. S., chap. 133, sec. 44), and if not given, the taxation may be set aside for irregularity.

If a party, after due notice, fails, without reasonable excuse, to appear before the taxing officer, he loses all benefit of objection to any item which might under any circumstances be lawfully taxed.

If the clerk should, in such case, exceed his jurisdiction, and allow items not given by law in any state of case, the party would not be concluded by such taxation, but might move the court at the earliest moment to correct it, and it would be done.

The court may direct the order in which mortgaged premises shall be sold, upon facts shown at the hearing, or by consent of parties, although no foundation for such direction was laid in the pleadings.

A direction in a judgment of foreclosure that the sheriff sha^l deduct from the moneys arising from the sale, the amount of any lien on the premises for taxes and assessments, does not authorize him to *pa/y*such taxes or assessments. He must bring the money thus deducted into court, to be disposed of as the court, after proper examination, shall direct.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action to foreclose a mortgage on lot 7, block 69, in Milwaukee, executed by *the*appellant, *Southwell,*to one Cooper, and assigned by bim to tbe plaintiff. Tbe complaint was in tbe usual form, and alleged, *inter*alia, that tbe mortgagor agreed by tbe terms of tbe mortgage to pay tbe taxes on said lot, and had failed to pay them. It did not allege that there was any covenant in tbe mortgage respecting solicitor’s fees, or any agreement on tbe part of tbe mortgagor to pay such fees.

*Southwell*filed an answer, wbicb was not sustained by proof, and in respect to wbicb no question arose in this court. Before tbe bearing, tbe following stipulation was filed in tbe case: “ It is hereby stipulated between A. C. Erazer, attorney for the above named plaintiff, and Stephen A. Harrison, one of tbe above named defendants, that tbe decree or order of sale of tbe mortgaged premises in this action, shall contain a clause providing that that portion of tbe mortgaged premises mentioned and described as follows : 1 That portion of lot No. 7, in block 69, in tbe seventh ward of the city of Milwaukee, bounded by a line commencing at tbe northwest corner of said lot, and running thence southerly along tbe *213west line thereof twenty six feet to a point; thence easterly on a line parallel with the north line of said-lot seventy feet to a point; thence northerly along a line parallel with said west line, to the north line of said lot; thence to the place of beginning; and all the buildings and appurtenances situate thereon,’- — -shall not be sold or exposed for sale until all the other portions of the mortgaged premises shall have been sold, and the proceeds of such sale shall be found insufficient to pay the amount ascertained tobe due said plaintiff by the decree of foreclosure, together with the costs and disbursements included in such judgment, and costs and expenses of sale. Aug. 14, 1860.”

On the 4th of May, 1861, the court entered a judgment of foreclosure for $2769.19, in which it was, among other things, ordered, “that the mortgaged premises described in the complaint in this action, as hereinafter set forth, or so much as may be sufficient to raise the amount due to the plaintiff for principal, interest and costs, and which may be sold separately without material injury to the parties interested, be sold at public auction, in the county of Milwaukee, by or under the direction of the sheriff of said county, provided, however, and it is hereby adjudged, that all of the said mortgaged premises, except the frame building or dwelling house on the north part of the same, be first sold by the said sheriff, before offering the said building or dwelling house for sale; and that in case that portion of the said premises herein before first [ordered to be] sold, shall not be sufficient to raise the amount due to the plaintiff for principal, interest and costs aforesaid, then the said frame building or dwelling house be also sold.” The judgment also directed, “That out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens upon said premises so sold, at the time of such sale, for taxes and assessments, the said sheriff pay to the plaintiff or his attorney, the sum of $170.14, adjudged to the plaintiff for costs and charges in this action, with interest from, the date hereof, and also the amount so found due.” In other respects the judgment of foreclosure was in the usual form. On the 9th of May, 1861, the court made *214tbe following order: “It satisfactorily appearing that tbe plaintiff in this action is entitled, by a provision in tbe mortgage to foreclose wbicb tbis action is brought, to a reasonable sum as attorney’s fees, and that $100 in addition to the taxable costs is reasonable, on motion of A. C. Erazer, attorney for tbe plaintiff, it is ordered that the said sum in addition to the taxable costs be, and tbe same is hereby allowed for that purpose. Tbe clerk of tbis court is hereby directed to allow tbe same in tbe taxation *of*costs *in*this action.” The costs taxed to make up said sum of $170.14, inserted as costs in tbe judgment, were tbe following: State tax, $1; clerk’s fees, $15.24; abstract, $8 ; printer, $19.40; postage, $1; register, 50 cts ; plaintiff’s attorney, $125. Tbe printed case contains tbe following statement: “ Tbe bond and mortgage were filed in this action as part of tbe record, and the mortgage contained a covenant to pay taxes, and then followed in it tbe following words: ‘ And also will pay the sum of dollars as solicitor’s fees, in case of tbe foreclosure of tbis mortgage by reason of tbe non-performance of any of tbe conditions hereof by tbe party of tbe first part.’ Tbis clause was printed in tbe mortgage, and the blank was. left unfilled.” *Southwell*appealed.

*Jason*Downer, for appellant:

1. Tbe court erred in ordering tbe land without tbe frame building to be first sold, and that if the proceeds did not satisfy the judgment, then the building should be sold. There is no foundation in tbe pleadings or evidence, for any judgment separating in tbis sale tbe house from the land. 2. That part of the judgment is erroneous wbicb directs that after deducting out of tbe proceeds of sale tbe amount of any liens for taxes or assessments, the sheriff shall pay, &c. The sheriff cannot determine what is a valid tax or assessment. If tbe plaintiff wished taxes on tbe mortgaged premises paid out of tbe proceeds of sale, be should have specified them in bis complaint, and had a judgment fixing their amount. 3. The allowance *of $100*as attorney’s fees, in addition to taxable costs, was erroneous, as there was no allegation in tbe complaint of any agreement in tbe mortgage or otherwise, to pay that sum or any sum, nor any proof of such an agree*215ment. Tbe mortgage itself, being in tbe record, shows that there was no such agreement. 4. Tbe taxation of $15.24,. clerk’s fees, is erroneous, as tbe statute Emits tbe clerk to ten dollars in each case. E. S. chap. 138, sec. 7.

May 15.

*A. 0.*Frazer, for respondent.

*By the*Court,

DixqN, C. J.

There being no bill of exceptions, nothing comes up but such papers as properly constitute tbe judgment roll. Tbe evidence upon which tbe judgment, orders and other proceedings were founded, whether documentary or otherwise, does not constitute any part of the judgment roll, and consequently cannot be considered. *Reid vs. Case,*14 Wis., 429. Among other papers, the statute declares that the roll shall contain all orders and papers in any way involving the merits and necessarily affecting the judgment. R. S., chap. 182, sec. 34. This, I think, includes the stipulation between the plaintiff and the defendant *Harrison,*the order for attorney’s fees, and the taxation of costs. It seems clear to me that they are orders and papers necessarily affecting the judgment and involving its merits. The statute declares that upon an appeal from a final judgment, the clerk shall transmit the judgment roll, and that this court may, upon such appeal, review any intermediate order involving the merits and necessarily affecting the judgment. Laws of 1860, chap. 264, secs. 5, 6. I think, therefore, that these papers are here, but that the order and taxation cannot be reviewed, for reasons which I will proceed to state.

The twelfth section of the act (chap. 264, Laws of 1860), provides that for the purpose of reviewing orders made before judgment, written exceptions to such orders may be filed within ten days after written notice of them, and that the exceptions with the orders may be incorporated in the bill. This provision is general, and includes all orders, whether they be such as constitute part of the judgmenkroll or not. It was objected that this was not an order made before judgment, and therefore not within the statute. But I do not, think so. It was an order fixing costs to be inserted in the judgment. Costs constitute part of the judgment, and I do not think it can be deemed perfected ■ until they are ascer*216tained and included; and therefore, though the order may in’fact have been made after the judgment was otherwise complete, yet for the purpose of appeal and review, it must be taken to have been made before. Without this, the parties might be without the means of correcting a most serious grievance, where I am satisfied the legislature intended to provide a remedy. The order cannot be reviewed, because no exceptions were taken to it, and for the further reason that it purports to be founded upon a provision contained in the mortgage, which is not before us. We cannot look into the mortgage to see whether it was authorized. The mortgage, or so much of it as was necessary, should have been incorporated in a bill of exceptions, to enable us to examine it.

We cannot review the taxation, for the reason that it was not brought to the attention of the court below. Eor that purpose exceptions are necessary, showing what occurred before the court and taxing officer, the items objected to, and the decision of the court thereon. It cannot be tolerated that the party may come here upon appeal from a judgment, and raise his objections to items of costs for the first time. Our business is to review the decisions of courts below upon questions actually made and decided there. Decisions are very numerous and uniform, that objections thus taken will not be entertained. *Hoffman v. Skinner,*5 Paige, 526; *Beattie v. Qua,*15 Barb., 132; *Lyon v. Wilkes,*1 Cow., *591; Cuyler v. Coates,*10 How. Pr. R., 141; *Castro v. Illies,*11 Texas, 39; *Day v. Berkshire Woollen Co.,*1 Gray, 420; *People v. Oakes,*1 How. Pr. R., 195. And in most cases the objecting party was likewise required to show, by affidavit or otherwise, that he appeared and opposed the taxation before the taxing offi cer. If he did this, he might then be heard before the court as to the *disputed*items, upon motion for re-taxation, in the nature of an appeal; else he waived objections. And this I deem to be the true rule upon the subject, that if, after due notice, he fails, without reasonable excuse, to appear be fore the taxing officer, he losps all benefit of objection to any item which might, under any circumstances, be lawfully taxed. The statute provides that the clerk shall insert in the entry of judgment, on the application of the prevailing party, *217upon two days’ notice to tbe other, tbe sum of tbe charges, for costs, necessary disbursements, and fees of officers ed by law. R. S., chap. 133, sec. 44. This notice must in all cases be given before tbe costs can be taxed and inserted, and if it be omitted, tbe taxation will be set aside for irregularity. 5 Paige, 526. Tbe object of this notice is very evident. It is that tbe opposite party may appear and object, if be desires to do so. If be does not, be assents to all items legally taxable, and tbe court will not afterwards investigate them upon bis motion. This is tbe legitimate result of bis default. But if there be an excess of jurisdiction — if tbe clerk allows items not given by law in any state of case, be will not be concluded by such taxation, but may move tbe court, at tbe earliest opportunity, to correct it, and it will be done. His failure to appear cannot be construed into a consent that costs may be taxed which tbe law, under no circumstances, allows. This may have been the fact as to tbe excess of clerk’s fees aboye $10 in this case, but tbe defendant did not move tbe court to set it aside. If be bad done so, and tbe motion been denied, be might, by proper exceptions, have brought tbe question before this court.

There is no error apparent on tbe face of tbe judgment. It was not necessary, in order to justify the directions as to tbe manner of selling tbe mortgaged premises, that a foundation should be laid in tbe pleadings. Tbe court might make them upon facts shown at tbe bearing, or by consent of parties. Tbe evidence does not appear, and no presumption can be indulged against tbe validity of tbe judgment. If tbe directions were wrong, it is incumbent on tbe defendant to show them to be so. Besides, it does not appear that be is in the least prejudiced by them.

Tbe direction to tbe sheriff to deduct from tbe moneys arising from tbe sale tbe amount of any lien or liens upon tbe mortgaged premises for taxes and assessments, does not authorize him to pay such costs and assessments, or perform any judicial function whatever. Tbe fair and reasonable construction is, that be is to bring tbe moneys thus deducted into court, to be disposed of as tbe judge, after tbe proper examination, shall direct.

Judgment affirmed.