174 Wis. 224 | Wis. | 1921
The respondents move to strike the bill of exceptions from the record upon the ground that it was not proposed or. settled within a year from the date of service of notice of entry of judgment, and that the extension of time to propose and settle it was granted after the expiration of such year upon the sole ground of the negligence of appellant’s attorney. It is contended that it is an established rule of practice that no bill of exceptions can be settled after the time for an appeal has expired, except upon a stipulation by the parties to the action. This claim is asserted on the declaration made by this court on the subject in Nelson v. A. H. Stange Co. 140 Wis. 657, 123 N. W. 152; Shafer v. Eau Claire, 105 Wis. 239, 81 N. W. 409; and Gemert v. Pooler, 171 Wis. 271, 177 N. W. 1. While it is asserted in these cases that this practice should be followed, it is not held that the court may not, upon good cause shown, allow a bill of exceptions to be settled and served after the time for appeal has expired. That the time for proposing and settling a bill of exceptions after the expiration of sixty days from notice of entry of judgment as prescribed in sec. 2876, Stats., may be extended under the provisions of sec. 2831, providing for the enlargement of time within which any proceeding in an action must be
It is also argued that the court abused its discretion in extending the time for settling the bill upon appellant’s application because the facts stated by plaintiff do not constitute a good cause- for the relief asked. We have examined the affidavits setting forth the facts upon which the application is made and other parts of the record pertaining to the delay in serving and settling a bill of exceptions and are of the opinion that the facts stated constitute a sufficient basis for the action of the circuit court and hence it cannot be said that the circuit court abused its discretion in enlarging the time for settling the bill, and the motion to strike it from the files must be denied.
It is contended that the exceptions to the court’s findings of fact are wholly insufficient to entitle appellant to a review of the evidence to determine whether or not the findings are supported by evidence. The only exception to the court’s findings is a general one in these words: “Plaintiff . . . excepts to the findings and conclusions of law herein dated April 8, 1919.” That such an exception is wholly insufficient is well established. As declared in Bailey v. Costello, 94 Wis. 87, 68 N. W. 663:
“The exceptions to the findings of fact are general, and do not point out specifically any particular, finding of fact*230 as erroneous. They are not sufficient, therefore, to entitle the defendant to call upon the court to revise the findings of fact. The office of an exception is to specify or point out some particular matter as erroneous, in order that it may be reviewed.” Statkawics v. Laguna, 155 Wis. 304, 143 N. W. 677, 144 N. W. 1133.
Although no sufficient exceptions have been preserved to call for a review of the evidence, the record has been examined and we are satisfied that the trial court based its findings of fact upon competent and material evidence.
Objections to instructions are called to our attention. The verdict of the jury was an advisory one, and the court specifically made its findings of facts on all of the issues tried. The trial court in its opinion declares that an incorrect rule given to the jury may have misled them, but the court then proceeds to make its findings under the evidence upon all of the issues in view of such misdirection of the jury. Under these circumstances, any such misdirection of the jury could not have entered into the final determination of the case by the court, and hence cannot be the foundation for prejudicial error upon review in this court.
It is argued that the court erred in receiving evidence of a conversation between defendant and an employee of the bank in plaintiff’s absence. The facts involved in this conversation are abundantly supported by. other evidence in the case. It is manifest that the competent evidence fully sustains the court’s findings on this subject and hence an erroneous admission of these conversations was in no way prejudicial error. True, as claimed by appellant, it is held in the cases of Clemens v. Clemens, 28 Wis. 637, and Davy v. Kelley, 66 Wis. 452, 29 N. W. 232, that conveyances of property made in fraud of creditors, while void as to creditors, are valid between the parties.
The trial court held that, while there is a marked conflict in the authorities on this proposition, the law in this state is as declared in these two cases. The circuit court, however,
“Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”
Under the facts of this case it is well established and found that plaintiff was a participant in the fraud of defendant and C. W. Behnke that led to the giving of the note and mortgage in suit, hence under sec. 1676-22 he had full knowledge of the facts that the note was not given for value and of its infirmity and the defect in the title in the hands of C. W. Behnke. But it is asserted that plaintiff acquired the right of a holder in due course when the note was trans
The contention that defendants are estopped from asserting the defense of a want of consideration under the facts and circumstances is not well founded in the light of the facts that plaintiff was a participant in the fraudulent transaction that led to the execution and delivery of the note and mortgage by the Kroenings to C. W. Behnke and his knowledge that the instruments were given without any consideration passing between the parties. Under such circumstances the plaintiff could hardly be honestly misled as to the true facts and thus be innocently induced to do what he did to
By the Court. — The judgment appealed from is affirmed.