Beebe v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

137 Wis. 269 | Wis. | 1908

BaeNes, J.

The defendant did not except to the order or ruling of the court directing a verdict. It moved for a new trial upon the minutes of the court, but failed to state any ground upon which it based its motion, and finally failed to take 'any exception to the order of the court denying the motion for a new trial. This being the state of the record, counsel for plaintiff urges that there is nothing before the court for review. If this court has authority to review the judgment in this case it must be on one of the following grounds: (1) The motion for a new trial is sufficient in form, and exception to the order refusing to grant the same is unnecessary; or (2) the order or ruling of the court in directing a verdict may be reviewed without exception and without a motion being made for a new trial.

1. The decided weight of authority in this court is to the effect that, where a statutory motion for a new trial is made, it should state the grounds upon which the motion was based, at least as specifically as they are mentioned in the statute. Nisbet v. Gill, 38 Wis. 657; Sloteman v. Thomas & W. Mfg. Co. 69 Wis. 499, 34 N. W. 225 ; Collins v. Janesville, 99 Wis. 464, 466, 75 N. W. 88; Williams v. Williams, 102 Wis. 246, 248, 78 N. W. 419; Howard v. Beldenwille L. Co. 134 Wis. 644, 114 N. W. 1114, 1117. No error can he predicated upon the refusal of the trial court to grant a new trial unless exception is taken to the ruling. Cotton v. Watkins, 6 Wis. 629, 634; Webster v. Modlin, 12 Wis. 368. We are unable to discover that the rule of practice enunciated in the two cases last referred to has ever been abrogated by statute or by subsequent judicial decision. Outside of this state such rule is generally in force. A collection of cases supporting it may be found in 2 Oyc. 1053, and 14 Ency. PI. & Pr. 972. The application of either of the preceding rules to the case at bar deprives the defendant of any benefit from its motion for a new trial. Sec. 3070, Stats. (1898), provides that on an appeal from a judgment this court may review any intermediate order which involves the merits and necessarily affects the judgment, appearing upon the record transmitted, whether the same be excepted to or not, and that it shall not be necessary to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged •error which would without a bill of exceptions appear upon the face of the record. This statute applies only to orders which are a part of the record proper without being incorporated in the hill of exceptions, and does not apply to rulings or orders of trial courts granting or refusing motions to direct a verdict. Kirch v. Davies, 55 Wis. 287, 298, 11 N. W. 689; Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 303, 50 N. W. 99. Hence the appeal does not fall within the scope of this statute.

2. It is not necessary to make a motion for a new trial in ■order to review a ruling of the trial judge granting a motion for a directed verdict. Plankinton v. Gorman, 93 Wis. 560, 562, 67 N. W. 1128; Second Nat. Bank v. Larson, 80 Wis. 469, 472, 50 N. W. 499; Zahn v. M. & S. R. Co. 114 Wis. 38, 89 N. W. 889; McGinn v. French, 107 Wis. 54, 82 N. W. 724; Lawless v. State, 114 Wis. 189, 191, 89 N. W. 891. In the absence of a proper motion for a new trial, and appropriate exception to the denial of the same, an order directing a verdict will not be reviewed unless it is excepted to. This rule is affirmatively laid down in Kirch v. Davies, 55 Wis. 287, 298, 11 N. W. 689, and in Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 303, 50 N. W. 99. In stating the conditions under which the court will review .such an order in tbe absence of a motion for a new trial, it is said, in Second Nat. Bank v. Larson, supra, in. Zahn v. M. & S. R. Co., supra, in McGinn v. French, supra, and in Plankinton v. Gorman, supra, tbat if tbe ruling of tbe court in directing a verdict is properly excepted to, and tbe exception is preserved in tbe bill of exceptions, it may be reviewed without a motion for a new trial. Tbe case of Kirch v. Davies, supra, is-cited and is apparently approved in Rosenthal v. Vernon, 79 Wis. 245, 250, 48 N. W. 485. Tbe latter case bolds that, where it appears upon tbe face of tbe verdict that it is directed, tbe ruling of tbe trial court in mailing tbe direction may be reviewed without exception, upon an appeal from tbe judgment, under tbe provisions of sec. 3070, above referred to. This case does not conflict with whatsis decided in tbe case under consideration, because tbe verdict does not show tbat it was a directed one. Tbe court, however, in Rosenthal v. Vernon, seems to have overlooked tbe fact that-tbe record, excluding the bill of exceptions, did not show tbat error was committed, and tbat it was only by recourse to tbe bill tbat tbe error could be discovered.

We conclude that tbe questions raised in this case cannot be considered, because they can only be reviewed on exceptions, and no exceptions were taken.

By the Court. — Judgment affirmed.