In an action brought against William Cauley and wife by Wilhelm Zinda, he recovered judgment against those defendants for the recovery of $1,538. After an execution to enforce payment, the judgment was returned unsatisfied, and Zinda instituted supplementary proceedings in which John F. Brunner was appointed and qualified as receiver of the property, etc., of Cauley and wife. An action was brought against Cauley and Felix Klosinski, as copartners, by the receiver, *Page 531 and in his verified complaint there were alleged the following facts which, by reason of defendants' failure to file any answer, are deemed admitted, to wit: That William Cauley was engaged in partnership with Felix Klosinski in buying and selling cattle; that Brunner, as receiver, had served notice on the partnership demanding payment to him of the earnings and property thereof belonging or owing to Cauley; that upon their refusal to comply with that demand, Brunner, as receiver, brought the action and served the complaint against Cauley and Klosinski, as copartners, to recover and have Cauley's interest in the partnership assets charged with the payment of Zinda's judgment against Cauley and wife; that in May, 1940, Brunner, as receiver, had seized certain livestock which the partnership had, and to avoid holding this livestock until a determination could be made by the court, it was released upon the defendant copartners' request and their depositing with the circuit court clerk $1,000 under and in accordance with a signed stipulation which provided the $1,000 "shall stand in lieu of the property which is redelivered to the said partnership, and to be distributed in accordance with the order of the court upon proper procedure." On a hearing in November, 1940, pursuant to an order requiring the copartner defendants to show cause why the $1,000 should not be applied to the payment of Zinda's judgment in the original action, the court appointed a referee to try and determine the issues in the matter; and upon the evidence, which was then introduced on the hearings before the referee he, in May, 1941, reported to the court the proceedings and evidence on the hearing and his findings and conclusions thereon, including the following: That the cattle, which were released under the stipulation, had been purchased with money advanced therefor and belonging to Klosinski, and the net profits on the sale thereof were to be divided equally between him and Cauley; that the cattle were sold for $1,763.29; that the total cost, including the transportation thereof, was $1,679.70, leaving a profit of $83.59, of which $41.79 was the one-half interest therein of Cauley; *Page 532 that such profit of $83.59 is the only asset of the partnership seized by Brunner as receiver and he is entitled to judgment for $41.79, out of profits on the sale of the cattle; and that this amount should be paid to the receiver out of the $1,000 deposited in court and shall be applied by him on Zinda's judgment against Cauley.
On July 6, 1942, the court, — after a hearing upon the receiver's objections to the referee's report and duly reviewing the testimony, — entered an order which confirmed the referee's report and directed that judgment be entered thereon accordingly. However, as there was no such judgment prepared by plaintiff's counsel for entry as ordered by the court, the latter, on its own motion, on July 30, 1945, "Ordered, adjudged and determined, that the plaintiff's complaint be dismissed upon its merits. It is further ordered, that no costs be allowed or taxed as such order for judgment was entered on the 6th day of July, 1942, and the defendant is not entitled to costs under the statute." From this judgment plaintiff appealed by a notice served on August 3, 1945, and thereafter the following notice, dated October 18, 1945, was given to plaintiff by defendants and filed in the office of the clerk of the circuit court, to wit:
"Take notice that the aboved-named defendants hereby recommend and consent to and offer to stipulate for the entry of a proper judgment in the above-entitled action in the above-named court conforming to the report of the referee and the order of the court confirming the same, and that the final judgment herein appealed from be amended accordingly, to wit, judgment in favor of the plaintiff and against the defendants for the amount of damages found by the referee, to wit, the sum of forty-one and 79/100ths ($41.79) dollars, and otherwise as recommended in said referee's report and confirmed by the court."
This notice was included in and certified by the circuit court clerk as part of the record transmitted by him on the appeal to this court. On this appeal it suffices to note, in addition and in relation to the matters stated above, that the evidence introduced on the hearings before the referee warranted the matters stated in his report, including his ultimate findings and conclusions that Brunner, as receiver, was entitled to receive, as a payment to be applied on the judgment against Cauley and wife, the sum of $41.79 awarded to the receiver out of the $1,000 deposited in court under the stipulation for the release of the cattle. Consequently, the court did not err in confirming on July 6, 1942, the referee's report and award, and then ordering the preparation by plaintiff of a judgment to be entered accordingly. Upon plaintiff's failure to comply with that order by preparing the judgment and causing it to be entered within sixty days of July 6, 1942, the circuit court clerk could have prepared and entered judgment accordingly, but without costs to either party (sec. 270.66, Stats.); and the court could have directed the clerk to do that. However, when the court, on its motion, in view of plaintiff's failure to cause judgment to be entered within the sixty-day period after July 6, 1942, finally in July, 1945, adjudged and determined that plaintiff's complaint be dismissed upon the merits, the court was in error. Although plaintiff was then no longer entitled to costs, he clearly was still entitled to have the judgment award to him said sum of $41.79 as reported and found by the referee and confirmed by the court in its order of July 6, 1942. Consequently it follows that the provision in the judgment dismissing the complaint must be reversed with directions to adjudge in lieu thereof that plaintiff is entitled to the award of said sum of $41.79.
As the respondents are not responsible for the discrepancy between the judgment which was to be entered pursuant to the court's order of July 6, 1942, and the judgment of dismissal *Page 534 which was entered in July, 1945, and as defendants' above-stated notice and consent to have the finally entered judgment properly amended was given prior to the transmittal of the record to this court, no costs will be allowed on this appeal to appellant, and he shall pay the clerk's fees.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with the opinion.
RECTOR, J., took no part.