Allerding v. Cross

| Wis. | Nov 2, 1861

Lead Opinion

By the Court,

PAINE, J.

We feel bound to affirm tbe judgment in tbis case, for tbe reason that exceptions were not taken in sucb a manner as to present tbe questions discussed by counsel. Tbe case was tried before a jury, and after argument, the jury, by consent of parties, found a formal verdict for tbe plaintiff, upon wbicb judgment was to be entered for tbe plaintiff if the court should be of opinion that it should stand; otherwise the verdict was to be set aside, and a judgment entered for tbe defendant for costs. Tbe plaintiff moved for judgment; tbe court denied tbe motion and gave judgment for tbe defendants, to which tbe plaintiff excépted. Tbis practice is certainly not in accordance with the statute, wbicb evidently contemplates a distinct exception to each distinct legal decision, whether it is made on tbe trial, or, in cases tried by the court, to the con-elusions of law found by him. It is well settled that a general exception to a charge to the jury is not good, if the charge embodies more than one legal proposition. The reason is, that the attention of the court below must be specifically called to the error complained of, so that it may correct it, before the appellate court will reverse for that error. This being so, it is difficult to see how the practice adopted in this case can be sustained. For it would allow the party, by one exception, to cover all the legal questions which could possibly be raised in the case, without reference to the question whether they were in fact raised or not. The counsel might discuss certain points in the court below, and then reverse the judgment here upon other points which they had not there discovered, and which the court below never passed 'on. We do not think the statute contemplates or authorizes such a practice, nor that it is advisable to adopt it.

September 1.

The judgment is affirmed, with costs.

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Rehearing

On a motion for a rehearing, which was granted, the following opinion was filed:

By the Court,

PAINE, J.

We are satisfied, upon the argument of the motion for a rehearing, that we were right in holding that the practice adopted was not a proper one to present the questions sought to be raised. Perhaps the reasoning in the former opinion went too far in assuming that the principal objection to such a practice was, that it evaded the rule requiring specific exceptions to each ruling of the court below.

If a special verdict had been found, or a case made stating the facts upon which the questions of law arose, the authorities cited would seem to show that a general exception to an order granting judgment to either party upon those facts, is sufficient to present for review any legal question that may arise upon them. But the cases all agree that the case must show the facts, and not merely the evidence of the facts. The facts may be presented in a special verdict, or by an agreed statement, but none of the cases sustains the practice of giving the evidence only, so that the appellate court must first fiad from that evidence what the facts are upon which these questions of law arise. The authorities cited upon this motion show such to be the rule. See also 1 Arch. Pr., 305, where it is said that where a general verdict is taken subject to the opinion of the court, in order to review the decision, it is necessary to turn the special case into a special verdict. See also page 306, where it is said, “ The facts proved at the trial, and not merely evidence of facts, must be stated in a special case, in the same manner as in a special verdict.”

But we are also satisfied that the appellant should have been allowed to apply to the court below to amend the record so as to show the facts properly. There could be no doubt about it, if the application for such relief had been made before the decision of the case here. But as we have decided it merely on the question of practice, we think it is still within our discretion to allow that relief, although to do so involves the necesssity of granting the motion for a rehearing. Eor this reason, therefore, the motion is granted, with leave to the appellant to apply for such an amendment of the record as will properly show the facts upon which the questions of law arise.

The motion is granted without costs.