
    Wirth, Respondent, vs. Bartell, Appellant.
    
      February 7
    
    March 5, 1895.
    
    (1) Improper joinder of causes of action: Flection: Estoppel. (2) Taxation of costs: Appeal: Exceptions.
    
    1. A cause of action on contract and one in tort were improperly joined,- and because the trial court refused to require plaintiff to elect between them a judgment in his favor was reversed and the cause remanded for a new trial. The trial court then ordered that plaintiff be allowed to proceed on his cause-of action on contract alone, upon payment of the costs up to that time, and such costs were-paid accordingly and accepted by defendant. Held, that ..defendant could not thereafter have the action dismissed because of the-improper joinder.
    
      2. Where an appeal from the taxation of costs by the clerk is dismissed by the court, a general exception to its finding and order and the costs does not bring np for review on appeal the ruling on any specific item of costs.
    Appeal from a judgment of tbe circuit court for Eond du Lac county: N. S. GfiLsow, Circuit Judge.
    
      Affirmed.
    
    This action was commenced in justice’s court to recover for work, labor, and services performed by tbe plaintiff for and at tbe request of tbe defendant, and for trespass upon tbe plaintiff’s premises. Tbe defense was a general denial and a counterclaim for work, labor, and services.
    On March 12, 1890, tbe defendant recovered judgment for $1.10 damages and $81.42 costs. Tbe plaintiff appealed to tbe county court, and thereupon tbe venue was changed to tbe circuit court. Tbe cause was referred to bear, try, and determine, and on November 11, 1891, tbe referee found and reported that tbe plaintiff was entitled to recover as damages $12.50, and costs to be taxed. Tbe report of tbe referee was confirmed by tbe circuit court, and judgment entered thereon April 9, 1892, in favor of tbe plaintiff for $12.50 damages and $118.03 costs and disbursements. On January 31, 1893', that judgment was reversed by this court, “ and tbe cause remanded for a new trial.” 84 Wis. 209.
    On March 28,1893, tbe circuit court made an order allowing tbe plaintiff “ to proceed in tbe case upon bis cause of action on contract, upon payment to tbe defendant’s attorneys within twenty days of tbe taxable costs and disbursements in said action from tbe time tbe case was appealed from tbe justice; ” and upon such costs being taxed by tbe clerk and retaxed by tbe court at $14.16 tbe plaintiff paid tbe same.
    On November 10,1893, the' parties stipulated, in effect, that the plaintiff have judgment for $12.50 damages, if tbe court should be of opinion that tbe plaintiff could recover at all, and submitted the question of the right to recover and of costs to the court upon argument.
    On December 20, 1893, the' defendant moved to dismiss the action for the improper joinder of causes of action, and upon argument the court overruled the motion.
    On January 5,1894, the court rendered judgment in favor of the plaintiff for $12.50 damages, and full costs and disbursements of the plaintiff in the justice’s court, and clerk’s fees from June 3, 1893, and $10 attorney’s fees, all taxed and allowed by the clerk at $12.96. The defendant appealed from such taxation, and thereafter said appeal was dismissed with $10 costs. Thereupon judgment was entered in favor of the plaintiff for $85.46 damages and costs. From that judgment the defendant appeals.
    For the appellant there was a brief by Phelps & Watson, and oral argument by P. W. Phelps.
    
    For the respondent there was a brief by Puffy & M<y Orory, and oral argument by J. IT. McCrory.
    
   Cassoday, J.

The exception to the refusal to dismiss the action is overruled. The plaintiff paid the defendant $14.16 for the privilege of proceeding in the case upon his cause of action upon contract alone. After accepting that money, the.defendant was no longer in a position to question the plaintiff’s fight to proceed to trial upon that'cause of action alone. Cogswell v. Colley, 22 Wis. 399; Flanders v. Merrimac, 44 Wis. 621; Webster-Glover L. & M. Co. v. St. Croix Co. 71 Wis. 311; Smith v. Coleman, 77 Wis. 348. There was no ground, therefore, for dismissing the action, especially as. it was remanded for a new trial. 84 Wis. 209. It follows that upon the stipulation filed the plaintiff was entitled to judgment for the amount of damages mentioned.

The only remaining question is as to whether the costs allowed were excessive. The only exception preserved in the bill of exceptions upon this appeal, as to the costs, is an exception to tbe order and finding of tbe conrt dismissing tbe appeal from tbe taxation of costs by tbe clerk, and tbe costs. Sncb a general exception does not bring before ns for review tbe ruling of tbe conrt npon any specific item of costs. Luedtke v. Jeffery, ante, p. 136.

By the Court.— Tbe judgment of tbe circuit conrt is affirmed. . .  