
    Case, Appellant, vs. Fuldner, Town Clerk, and another, Respondents.
    
      May 2
    
    May 21, 1901.
    
    
      Costs: Demurrer: Appeal,
    
    1. Under sec. 3686, Stats. 1898 (providing that alter the decision of a demurrer the court may permit the party interposing the demurrer to plead over or withdraw his demurrer on terms), an order awarding absolutely $10 costs on overruling a demurrer is erroneous; such costs are only admissible as terms of leave to interpose some further plea.
    2. On a general appeal from such order, no question being raised but that it was proper except as to costs, the order will be reversed as to costs and otherwise affirmed.
    Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.
    
      Affirmed inpa/rt; reversed in part.
    
    Appeal from an order overruling plaintiff’s demurrer to defendants’ answer. The order awarded absolutely to defendants $10 costs. Plaintiff appeals on the single question of whether it was error to allow such costs.
    Eor the appellant there were briefs by Geo. L. Williams, and oral argument by Glenn H. Williams.
    
    Eor the respondents there was a brief by Henderson ds Williams, and WimMer, Flanders, Smith, Botham & Vilas, and oral argument by J. G. Flanders.
    
   MaRshall, J.

The question presented for decision is ruled in favor of appellant by sec. 2686, Stats. 1898. Curtis v. Moore, 15 Wis. 134; Bishop v. Aldrich, 48 Wis. 619, 623; Schoenleber v. Burkhardt, 94 Wis. 575; Schroeder v. Richardson, 101 Wis. 529; State ex rel. Rice v. Chittenden, 107 Wis. 354. The statute cited plainly indicates that special costs against a losing party, upon the decision of a demurrer, or any costs other than such as abide the final result of the action and to be taxed in the ordinary fee bill, are only admissible as terms of leave to interpose some further plea. This court has repeatedly so held in the cases cited. The appeal from the order being general, and no question being raised but that it was proper except as to the costs, it must be reversed as to that feature and otherwise be affirmed.

By the Court.— So ordered. Ordered further that costs in this court in favor of appellant be limited to clerk’s fees.  